Defense lawyers seek to transfer suit alleging injuries from deformity-causing thalidomide from state to federal court

By Jon Campisi | Feb 14, 2013

Attorneys representing a handful of defendants named in a thalidomide products liability

case initiated by three plaintiffs at Philadelphia’s Court of Common Pleas last month are seeking to have the case transferred out of Pennsylvania state court and into the U.S. District Court in Philadelphia.

Doris Brust, Alan Horridge and Christopher Simeone filed suit on Feb. 11 at Common Pleas Court alleging claims against Avantor Performance Materials, GlaxoSmithKline LLC, GlaxoSmithKline Holdings (Americas) Inc., Sanofi-Aventis U.S. LLC, Grünenthal GMBH, and Grünenthal U.S.A. Inc.

Brust is a resident of Wisconsin, Horridge lives in Texas and Simeone hails from California.

The plaintiffs allege that they were each born with serious birth defects, which included physical deformities, as a result of their mothers taking the drug thalidomide during pregnancy.

Brust was born in late 1962 with a deformed right arm and right hand that only has four fingers and no thumb, according to the complaint.

The woman was also born with a cleft palate, a hair lip, and she is completely deaf in her right ear. Burst also has a heart defect.

Horridge was born in 1960 with deformed fingers on his right hand, and the fingers on his left hand were joined on the ends with no fingernails. He also has no left big toe.

Simeone was born in the spring of 1962 with a deformed right arm, right hand and an undeveloped right pectoral chest muscle, the lawsuit states.

The complaint says that in the late 1950s and early 1960s, more than 10,000 children in 46 countries were born with physical deformities as a consequence of their mothers using the drug thalidomide while they were pregnant.

The pharmaceutical was developed by the German drug company Grünenthal, with Heinrich Mückter, a former Nazi Party member, as the man credited with the drug’s invention.

The medicine supposedly had an inhibitory effect on morning sickness, so thousands of pregnant women took the drug to relieve their symptoms, the lawsuit states.

The drug was linked with serious birth defects in 1961 in Europe and Australia, the suit states, and while it was never approved by the FDA for use in the States, it was nevertheless distributed by the defendants to at least 20,000 patients Americans, the complaint alleges.

“It is impossible to know how many pregnant women had been given the drug to help alleviate morning sickness or as a sedative,” the lawsuit states.

The suit was filed at Common Pleas Court by attorneys with the Philadelphia firm Spector, Roseman, Kodroff & Willis.

Lawyers with Washington State-based Hagens Berman Sobol Shapiro LLP joined in on the filing.

On Feb. 11, the very day the suit was filed in state court, lawyers Michael T. Scott, Stephen J. McConnell and Melissa A. Wojtylak, of the Philadelphia firm Reed Smith LLP, filed a removal notice on behalf of the GlaxoSmithKline defendants seeking to have the action transferred to the U.S. District Court for the Eastern District of Pennsylvania.

In their filing, the defense attorneys claim that no defendant as of yet has been served with the complaint, and that removal to the federal venue is appropriate because the case constitutes a civil action comprising citizens of different states and in which the amount in controversy exceeds state court jurisdiction.

As for the meat of the complaint, the plaintiffs allege that they suffered greatly as a result of the defendants’ “conspiracy to commit fraud and misrepresentation of their willful, wanton, and reckless conduct.”

The plaintiffs’ massive, 130-page complaint claims that the thalidomide tragedy was routinely portrayed as a “European problem,” and that the drug companies “fraudulently convinced Congress and the public that thalidomide could not have caused injuries in the United States.”

The companies, the suit says, falsely claimed that the pharmaceutical was almost entirely unavailable in the United States and that the companies failed to reveal that testing on pregnant American women had resulted in the births of at least two malformed babies by 1958.

The complaint states that to this day, it is still “widely and incorrectly reported” that thalidomide caused fewer than 20 American babies to be born with deformities, with many of them injured by thalidomide acquired overseas.

“The inaccuracy of the ‘fewer than twenty’ cases is evidenced in part by the fact that there are eleven plaintiffs in this case alone, and they cannot be the only thalidomide victims in the United States,” the complaint reads.

The suit maintains that documents only recently uncovered reveal that the representations made by the drug companies about the supposed limited use of thalidomide in the U.S. were false.

The complaint alleges that each of the named defendants participated in an effort to hide the facts as to their respective distribution and marketing of thalidomide in the United States.

The complaint contains counts of negligence and negligent design; fraud and negligent misrepresentation; negligent hiring; civil conspiracy; and alter ego liability.

The plaintiffs seek past, present and future economic damages, unspecified compensatory damages, general damages, attorney’s fees, interest and costs.

The lawsuit paints a gruesome picture of thalidomide injuries, saying that what the defendant companies did was “nothing short of creating every family’s nightmare by virtue of babies dying in infancy due to thalidomide, or surviving with birth defects, some so severe as to shock care-givers and family members.

“The truth,” the complaint continues, “is that the defendant drug companies medically experimented on patients by distributing thalidomide to doctors without adequate testing and in reckless disregard of the risks such as medical experimentation presented to fetuses in pregnant women.”

A Newsweek article from Sept. 10 of this year, titled “The Nazis and Thalidomide: The Worst Drug Scandal of All Time,” said for nearly a half-century, Chemie Grünenthal, the small German company behind thalidomide that was new to pharmacology when it first started out, was “silent and secretive about the epic tragedy it created while earning a vast profit.”

“Even before its release, the wife of an employee gave birth to a baby without ears, but Chemie Grünenthal ignored the warning,” the article stated. “Within two years, an estimated million people in West Germany were taking the drug on a daily basis.”

Newsweek reported that even after an Australian doctor connected thalidomide with deformed births in 1961, it took four months for the company to withdraw the drug from the market.

But by then it was too late: the pharmaceutical was estimated to have affected 100,000 pregnant women, causing at least 90,000 miscarriages and thousands of deformities to the babies who ended up surviving.

Newsweek also reported that in 1970, the company agreed to pay nearly $28 million into a fund designed to compensate the victims.

In return, the manufacturer was granted permanent legal immunity in Germany.

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