Jon Campisi Sep. 11, 2013, 7:11am


A U.S. District Court judge has granted remand in a Paxil products liability

case against GlaxoSmithKline, agreeing to the plaintiff’s request to transfer the matter back to the Philadelphia Court of Common Pleas, where the suit was originally filed two years ago as part of the Paxil Pregnancy Mass Tort Program.

Judge John R. Padova, sitting in the Eastern District of Pennsylvania, granted a motion to remand a case brought by Amy Lynn Hallock on behalf of her child, Joseph Cammarota, to state court.

The plaintiff is suing GlaxoSmithKline over her son’s critical heart defect, an ailment that required surgery, and one the woman blames on her taking the antidepressant Paxil during pregnancy.

Hallock filed her complaint on Sept. 30, 2011, at Common Pleas Court as part of the Paxil mass tort docket, and the drug company filed a motion to transfer the action to federal court a month later, the record shows.

As Padova, the federal judge, put it, however, the Hallock case has an “unusually complicated procedural history,” with the record showing that GSK subsequently filed removal notices with regard to various Paxil cases that had been filed at Philadelphia’s Common Pleas Court as part of the mass tort program, arguing that the federal court has subject matter jurisdiction over the products liability claims.

In late 2011, the record shows, the Hallock complaint was consolidated with other Paxil pregnancy cases before U.S. District Judge Timothy Savage for the purpose of deciding their identical motions to remand.

Savage ultimately granted the various motions to remand to state court, determining that GSK is a Pennsylvania citizen for jurisdictional purposes and cannot remove a case from state court on the basis of federal diversity jurisdiction, Padova’s recent judicial memorandum notes.

The Hallock case was therefore sent back to state court along with the others.

The parties in the Hallock case went on to litigate the case as part of the mass tort program at Common Pleas Court, the record shows, and the case was scheduled for trial this coming November in state court.

In late June, however, GSK once again filed a motion to transfer the matter to the federal venue after a U.S. Third Circuit Court of Appeals ruling determining that GlaxoSmithKline Holdings’ principal place of business is in Delaware.

The federal appeals judges held that because neither GSK nor GSK Holdings is a Pennsylvania citizen, the pharmaceutical manufacturer could properly remove Paxil cases from state court to the U.S. District Court in Philadelphia pursuant to diversity of jurisdiction.

The defendant filed its removal notice on June 26; Hallock responded with another motion to remand two days later.

Attorneys for GSK argued that the Hallock case should not be remanded because the one-year limitation on removal doesn’t apply to the June 26 removal of this case, the record shows.

Padova concluded that the case was not removable at the time it was commenced in state court, therefore triggering the potential application of the one-year limitation period.

The judge still had to grapple with whether or not the case could be removed to U.S. District Court for a second time since court rules don’t specifically provide a procedure for the second removal of a case that had been previously remanded.

The defendant cited the case of Doe v. American Red Cross, in which the Third Circuit considered the consolidated interlocutory appeals of plaintiffs who had unsuccessfully moved to remand negligence actions brought against the Red Cross after the cases had been removed from state court by the Red Cross for the second time.

In that case, the Third Circuit ruled that the Red Cross’s second removal was not an appeal of, or request for review of, the district court’s previous remand order because the Red Cross removed for the second time on a basis different from the first removal.

The Third Circuit ended up affirming the District Court’s decision in that case, concluding that while the Supreme Court found the Red Cross’s charter conferred federal jurisdiction in a different case, the Doe case had been justifiably removed.

In the present case, Padova wrote that he agreed with GSK that Doe provides authority for the second removal of the Hallock action.

“In this case, as in Doe, the district court found that the case stated by the initial pleading was not removable,” Padova wrote.

Like in Doe, Padova wrote, GSK’s June 26 removal of the Hallock case is not a request for review of the district court’s previous remand order because GSK removed for the second time on a different basis than that of the first removal.

Still, Padova was tasked with determining whether or not there was, as GSK argued, an “equitable exception” to the one-year limitation on removals of certain actions, such as the Hallock suit.

In determining whether such an exception applies, courts have generally considered how vigorously a plaintiff prosecuted their action in state court, whether the defendants were complicit in any delay in removal of the case, and whether or not the plaintiffs’ joining of any non-diverse defendants amounted to “flagrant forum manipulation,” according to Padova’s memorandum.

Of the three factors, Padova wrote, GSK could only arguably assert the second, which would be that the defendant was not complicit in any delay in the case’s removal.

“While we recognize that GSK was not complicit in the removal delay in this case, we conclude that this fact is merely neutral, and neither favors nor disfavors an equitable exception,” Padova wrote.

The other two factors weigh against granting an equitable exception, the judge stated.

Padova went on to write that for the past year-and-a-half the plaintiffs have “vigorously prosecuted this case as part of the Paxil Pregnancy Mass Tort Program. For the past six years, the judges in the Mass Tort Program have uniformly ruled on discovery issues in hundreds of cases like this one.

“Moreover,” Padova wrote, “many of the scientific issues that have arisen in this case have already been litigated in the Mass Tort Program and may have to be relitigated if this case is not remanded. Plaintiffs have expressed particular concern that, if this case is not remanded, GSK will revisit issues that have been resolved in the Mass Tort Program, but for which no written order was entered in the docket of this case.”

Padova also noted that the plaintiffs have already prepared their case using expert witness testimony and opinions in accordance with state standard governing the admissibility of scientific testimony, and that if removal to federal court was permitted, expert testimony would be subject to a different standard.

This would cause “significant expense and delay,” Padova wrote.

In this case, the vigorous prosecution factor weighs heavily in favor of strict enforcement of the one-year limitation period, the judge stated.

In the end, Padova concluded that GSK has not satisfied its burden of establishing that an equitable exception to the one-year limitation on removal is warranted in this case.

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