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Paxil Test Case Fails Statute of Limitations

One of Philadelphia’s bellwether cases in litigation over whether the maker of the drug Paxil failed to warn about an increased risk of suicide from its drug has been dismissed following a Common Pleas Court judge’s decision to grant summary judgment on statute of limitations grounds.

Collins v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline survived summary judgment in March when defendant GlaxoSmithKline argued that the doctrine of federal pre-emption precluded the plaintiffs from pursuing their state products liability claim.

While Judge Tereshko, coordinating judge of the Complex Litigation Center, denied summary judgment on the grounds of federal pre-emption in March, Tereshko granted summary judgment on the grounds regarding Pennsylvania’s statute of limitations.

The judge’s order dismissed all of plaintiffs claims of wrongful death, survival, negligence, negligent infliction of emotional distress, strict liability under the Maryland Products Liability Act, fraud, negligent misrepresentation, loss of consortium and punitive damages.

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The Collins family alleged that the Paxil prescribed to Collins for stress-related depression did not have an adequate warning of possible suicidality from taking the drug. Collins committed suicide Feb. 14, 2002.

There are 47 cases pending in the Philadelphia Paxil program, according to the director of the Complex Litigation Center.

Of the Paxil cases filed in Philadelphia Common Pleas Court, Collins was one of the closest to going to trial, as one of eight bellwether cases in a pool being prepared for trial. The plaintiffs’ claims were time-barred because they failed to file their lawsuit within the two-year statute of limitations that started from Collins’ Feb. 14, 2002, death, according to GlaxoSmithKline’s memorandum in support of its motion for summary judgment.

Collins was prescribed Paxil Jan. 9, 2002, following a visit with a psychiatrist at Georgetown University Hospital. Paroxetine, or Paxil, is a selective serotonin reuptake inhibitor, or SSRI, which regulates the level of the brain chemical, or neurotransmitter, serotonin and which is believed to help reduce depression.

Collins, a Maryland resident, ex-police officer, was undergoing a number of “psychosocial stressors,” including the death of his twin brother, job conflicts, a diagnosis of ulcerative colitis and his wife’s diagnosis with breast cancer.

Plaintiffs argued that under Maryland law, a three-year statute of limitations should apply, and that GSK agreed to toll any claims in a January 2005 tolling agreement. The plaintiffs’ brief regarding the summary judgment motion was filed under seal because it addresses information GSK considered confidential, and it is up to GlaxoSmithKline to consent to its release,
GSK also said that the tolling agreement is both irrelevant and had expired almost one year earlier than the Feb. 7, 2007, initiation of this lawsuit.

GSK also said that Pennsylvania’s statute of limitations barred the plaintiffs’ claims because the shortest statute of limitations from different jurisdictions must apply to the claims, according to its brief.

“Plaintiffs chose to bring their lawsuit in Pennsylvania, a state that has a shorter statute of limitations than Maryland,” GSK said in its reply brief. “When they did so, they threw themselves into the lion’s den and the express language of the tolling agreement that preserves the legal status on both sides and expressly allows GSK to assert all affirmative defenses that existed at the time the parties agreed to the tolling agreement.”

The plaintiffs also argued that even if Pennsylvania’s two-year statute of limitations applied, the statute of limitations was tolled because of the fraudulent concealment doctrine. Collins’ wife, contacted Georgetown University Hospital regarding her husband’s death, but Georgetown said there was nothing out of place with Collins’ care. It was not until 2004 and 2006 when GSK sent letters to the medical profession regarding the link between Paxil and suicide that the wife first learned that Paxil might have contributed to or caused her husband’s suicide.

GSK said in its brief that the doctrine of fraudulent concealment couldn’t save the plaintiffs’ claims because the plaintiffs failed to “exercise the requisite diligence to learn the alleged cause of Mr. Collins’ death.” Besides writing the letter to Georgetown University Hospital, the wife did not make any other effort to determine the cause of her husband’s suicide, and the deep grief she professed is not enough reason for her to not fulfill her legal duty to investigate the cause of her husband’s death and bring a timely legal claim, GSK’s brief said.

While GSK disputes that Paxil causes suicidal behavior, there was plenty of publicly available information about the alleged connection between Paxil and suicide, GSK’s brief said. The plaintiffs’ expert, Dr. Joseph Glenmullen, also noted that there was extensive medical literature regarding the alleged link, GSK said.

“There was nothing secret about the debate over SSRIs and suicidality. … Plaintiffs simply sat on their rights. They cannot now invoke the doctrine of fraudulent concealment to save their belated claims,” GSK’s brief said.

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