GlaxoSmithKline granted summary judgment against suit alleging thalidomide birth defects

Nicholas Malfitano Jan. 7, 2016, 9:23am


PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has upheld a trial court ruling granting summary judgment against a woman who filed suit charging her birth defects were caused by thalidomide.

The Third Circuit issued a ruling Tuesday authored by Judge Marjorie O. Rendell, affirming an earlier decision from the U.S. District Court for the Eastern District of Pennsylvania in Debra Johnson’s suit against GlaxoSmithKline (GSK).

In February 1959, Johnson was born in Louisiana with severe birth defects. Since Johnson was a young child, her mother, Doris Williams, believed she knew the cause of those birth defects.

During Williams’ pregnancy, she had taken what her doctor allegedly told her were “experimental pills from Germany for morning sickness," and later learned of other women who took the same pills and gave birth to children with birth defects similar to her daughter’s. 

Williams did not reveal this information to Johnson or to anyone else until Feb. 13, 2012. Before that day, Johnson had not consulted any family, friends, or doctors about what may have caused her birth defects.

However, after receiving a tip about thalidomide, conducting subsequent online research into the subject and an examination of medical records from her younger years detailing her birth defects, Johnson sued GSK. 

Per her complaint, in the 1950s, GSK obtained thalidomide from a German company called Grunenthal and held limited U.S. clinical trials on both mice and human subjects. Johnson alleged her birth defects were due to Williams taking thalidomide.

GSK moved for summary judgment, arguing Johnson’s claim was barred by Louisiana’s one-year statute of limitations. Though Johnson countered the discovery rule tolled the limitations period until no earlier than one year before she filed her suit, the trial court disagreed and granted GSK summary judgment. Johnson appealed the summary judgment ruling to the Third Circuit.

On behalf of herself and judges Michael A. Chagares and Patty Shwartz, Rendell explained the trial court properly applied Louisiana law in limiting the statute of limitations related to Johnson’s claim at one year, a countdown which would have begun when the injuries were sustained – Johnson’s birth in February 1959 – and run until February 1960.

“Thus, the statute of limitations ran [out] long before Johnson instituted the instant action. The District Court also correctly reasoned that, even if Williams’ knowledge was not imputed to Johnson, Johnson never investigated the cause of her injuries,” Rendell said.

Rendell rejected Johnson’s argument of the discovery rule tolling the limit until one year before her suit was filed, Sept. 24, 2011, and that she could not have known prior to that date that thalidomide caused her birth defects because her mother’s knowledge could not be imputed to her.

“Because Louisiana law does not permit retroactive application of its minor tolling statute, her mother’s knowledge would be imputed to Johnson,” Rendell said.

Rendell and the Third Circuit also dismissed Johnson’s other contentions, such as the Court’s refusal to credit her expert witness, in addition to Johnson’s argument that her legal inaction was caused by fraudulent concealment on the part of GSK. 

“We find the District Court’s analysis to be correct in all respects and will therefore affirm its grant of GSK’s motion for summary judgment,” Rendell said. 

The plaintiff is represented by Craig R. Spiegel, Nick Styant-Browne and Steve W. Berman of Hagens Berman Sobol Shapiro in Seattle, Wash. and Jeffrey L. Kodroff, John A. Macoretta and Mary Ann Geppert of Spector Roseman Kodroff & Willis, in Philadelphia. 

The defendants are represented by Michael T. Scott and Amy M. Vanni of Reed Smith, also in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 15-2086

U.S. District Court for the Eastern District of Pennsylvania case 2:12-cv-05455

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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