The Pennsylvania Superior Court has upheld summary judgment in an unpublished opinion in a case involving Ohio plaintiffs who alleged that a woman’s use of the antidepressant Paxil during her pregnancy led to birth defects in her daughter’s heart.

The panel was made up of Senior Judge Gene Strassburger, who wrote the memorandum opinion, and Judges Anne E. Lazarus and Paula Francisco Ott. Lazarus and Ott concurred in the result without writing separate concurrences.

Strassburger said, "We are constrained to conclude" that Mary and Dean Pettit waived one aspect of their appeal. The Pettits failed to address in their concise statement of issues upon appeal, Strassburger said, the trial judge’s decision to base summary judgment on issues of proximate causation and the learned intermediary doctrine under which drug companies must make the warnings about their products to prescribers, not to consumers themselves.

The Pettits’ daughter, Danielle Pettit, had a stroke after having surgery for her congenital heart defect at the age of 8 months. Danielle Pettit died in July 2007 at the age of 10.

But Strassburger said in his opinion March 4 that Philadelphia Court of Common Pleas Senior Judge Sandra Mazer Moss should not have granted summary judgment by concluding, as a matter of law, that Mary Pettit had not taken Paxil during her pregnancy.

During oral argument, Strassburger wondered how a fact-finder could believe any of Pettit’s stories when she changed her story on who prescribed her Paxil and when the plaintiff first said she was given Paxil through prescriptions but in the end finally said she was given Paxil through samples alone.

Strassburger reasoned in the decision March 4 that Moss made the case "why the jury might not believe that Mary ever took Paxil at all, let alone during her pregnancy," by setting out in one of Moss’ opinions that "’there is absolutely no documentary evidence—no doctor, hospital, pharmacy or medical record of any kind—which indicates Mary took Paxil.’"

Moss, according to court papers, reasoned that under Ohio law the Ohio plaintiffs had to show Pettit’s prescriber relied upon information furnished by the drugmaker and that: "’There’s just not enough. There just has to be a line drawn before you come into a jurisdiction and make serious allegations. There has to be some rudimentary element of proof. Even if it was an ER record that mentioned a particular drug, it would probably be enough.’"

But the standard for granting summary judgment is that a trial judge must determine that there is no genuine issue to any material fact at all, and that doubts about the existence of a genuine issue must be resolved against the party seeking summary judgment, Strassburger said.

The physician who allegedly prescribed or provided the medication testified that he did not remember Pettit, and that he no longer had his medical records after selling his practice. Emergency-room records around that time listed Dr. George Huntress as Pettit’s physician, the plaintiffs argued, while drugmaker GlaxoSmithKline said in court papers that Pettit never told other health care providers that she was using Paxil.

"Mary testified in her deposition that Dr. Huntress gave her a two-and-a-half-month supply of Paxil in sample packaging, which she took from September through November 1996," Strassburger reasoned. "Dean testified in his deposition that Mary took Paxil in the two to two-and-a-half months leading up to her pregnancy with Danielle. This testimony is sufficient to create a genuine issue of material fact requiring a jury to decide whether Mary actually took Paxil. Accordingly, the trial court erred in concluding otherwise and improperly granted summary judgment on this basis."

Daniel J. Siegel, the appellate attorney for the plaintiffs and of the Law Offices of Daniel J. Siegel in Havertown, Pa., did not respond to an email requesting comment.

Halli D. Cohn, GSK’s attorney and a partner with King & Spalding in Atlanta who made the oral argument in the Pettit case, said in an email, "We are pleased that the Superior Court affirmed the trial court’s order granting summary judgment in favor of GSK."

During oral argument, Siegel said that it is up to a jury to decide which evidence, if any, is the truth.

"That’s the jury function," Siegel said, adding that the essence of the jury’s role is to judge credibility and the trial court should not have placed itself in the jury box and determined that the testimony on behalf of the plaintiffs was inadequate as a matter of law.

Cohn countered by arguing that Mary Pettit’s use of Paxil is not an issue of credibility but one of "speculation."

"The jury would have to speculate and that’s not proper," Cohn said.