Jon Campisi Sep. 23, 2013, 12:51pm


A Florida woman’s Paxil products liability complaint against GlaxoSmithKline has been sent from U.S. District Court back to the Philadelphia Court of Common Pleas, where the action had originally been filed in the state court’s mass tort program.

U.S. District Judge Michael Baylson on Sept. 19 ordered the  the case Holly Benge brought against the pharmaceutical company on behalf of her minor child be transferred to the Philadelphia Court of Common Pleas, concluding the defense’s removal of the case to the federal venue was improper because the case was no longer “pending” when GlaxoSmithKline filed its transfer petition.

Baylson, who simultaneously denied the drug company’s motion to transfer to federal court, determined the mass tort claim had been discontinued prior to removal by GSK.

The somewhat convoluted case began back on May 30 when Benge filed a short-form complaint in the consolidated Paxil Pregnancy litigation pending before Philadelphia Common Pleas Court Judge Arnold New in that court’s mass tort program.

Benge claims her daughter suffered a birth defect as a result of her ingestion of the antidepressant drug Paxil during pregnancy.

Her lawyer had filed eight similar short-form Paxil complaints against GSK on the same day that the Benge's claim was filed in state court.

In her initial complaint, Benge listed GSK as a Pennsylvania citizen, and believed the defendant couldn’t remove the case to federal court based on diversity jurisdiction because it was an in-state defendant, the record shows.

In early June, however, the U.S. Third Circuit Court of Appeals held that GSK is a citizen of Delaware, not Pennsylvania.

In light of the appeals court ruling, Benge’s attorneys told New, the Philadelphia judge, that they were voluntarily dismissing without prejudice the nine Paxil cases they had filed in May against GSK, the record shows.

Following the state court hearing, the plaintiff’s lawyers filed a praecipe to discontinue with the Philadelphia prothonotary’s office. In Pennsylvania, the prothonotary is the clerk of civil courts.

A day later, attorneys for GSK, citing the Third Circuit decision, filed removal notices for each of the nine cases seeking to move them to federal court.

The prothonotary, however, ended up rejecting the removal petitions because they had earlier been disposed of, according to the record.

A court employee entered into the state court docket a comment that stated the removal had been “accepted in error,” and that GSK would be entitled to a refund.

On June 25, the record shows that Benge filed a motion at U.S. District Court seeking to voluntarily dismiss her Paxil case without prejudice.

She argued that the case should be tossed because it had been discontinued in state court before GSK filed its removal notice, and the prothontary’s rejection of the defendant’s removal notice prevented the removal from becoming effective, the record shows.

In late July, Benge filed another motion, this one seeking to remand the case to state court on the grounds that removal was improper.

She claimed GSK didn’t comply with federal procedural rules because it filed its removal notice after the case had already been voluntarily dismissed, Baylson’s judicial memorandum states.

The plaintiff argued the case was no loner “pending” at the time GSK filed its notice.

The drug company counter-argued that the case hadn’t, in fact, been discontinued prior to removal because under state law, cases involving minor plaintiffs can’t be voluntarily dismissed simply by filing a praecipe for discontinuance.

Benge, however, claimed she got proper court approval to discontinue the case, and that the case was discontinued in accord with “the long-standing practices and procedures of the Philadelphia Court of Common Pleas’ Paxil Pregnancy [Mass Tort Program].”

In the end, Baylson, the federal judge, determined the case had properly been disposed of at Common Pleas Court.

He wrote that a plaintiff looking to voluntarily discontinue a case involving a minor is not required under Pennsylvania law to provide the court with a written request to do so.

The Pennsylvania Superior Court, one of two intermediate state appellate courts, had determined that such a request can be delivered orally, not just in writing, Baylson noted.

“This is significant because, at oral argument, Defense counsel did not dispute that Plaintiffs’ counsel informed Judge New at the June 17 hearing that they were voluntarily dismissing all nine of the actions they had filed,” Baylson wrote.

Baylson also noted that discontinuances don’t have to be approved via signed judicial order, and that the burden to prove a case was discontinued is not on the plaintiff, but rather it’s on the defendant.

“It is GSK’s burden to prove that the case was not discontinued because GSK bears the burden of proving the jurisdiction of this Court and the propriety of removal,” Baylson wrote.

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