Pa. Superior Court affirms Phila. judge's granting summary judgment to Glaxo in Paxil infant death case

By Jon Campisi | Mar 8, 2013

A Pennsylvania Superior Court panel has affirmed a granting of summary judgment to

drugmaker GlaxoSmithKline in a Paxil products liability case involving a deceased infant, but the judges stressed they were upholding the decision for reasons other than those offered by the trial court.

The case, which came out of the Philadelphia Court of Common Pleas, involved Dean and Mary Pettit, who gave birth to a baby girl named Danielle back in July 1997.

Shortly after her birth, Danielle was diagnosed with a congenital heart defect known as hypoplastic left heart syndrome. Danielle suffered a stroke the day after having surgery for the condition when she was eight months old. She ended up dying at 10 years of age in July 2007.

According to the suit, the Pettits soon discovered that their daughter’s heart condition could have been caused by Mary Pettit taking the antidepressant drug Paxil during her pregnancy. On Nov. 19, 2007, the couple filed a short-form complaint against GlaxoSmithKline in the Paxil Pregnancy Mass Tort Program at Philadelphia’s Common Pleas Court.

The complaint asserted that Mary Pettit’s ingestion of Paxil during the first trimester of her pregnancy caused Danielle to be born with the heart defect that eventually led to her death.

The complaint alleged that GSK was negligent in failing to warn the plaintiff’s doctor of the drug’s harmful side effect.

The suit also contained counts of negligent misrepresentation and design defect.

In February 2011, lawyers for GSK filed for summary judgment, asserting that under Ohio law, the defendant was entitled to summary judgment for various reasons.

First, they argued that summary judgment was appropriate because the Pettits failed to establish proximate cause, asserting that the plaintiffs produced no evidence that Mary actually took Paxil, and that if she did, that the claim would fall under the learned intermediary doctrine.

The defendant also asserted that the design defect and negligent misrepresentation claims were preempted by the Ohio Products Liability Act.

A Philadelphia judge granted summary judgment to GSK on Jan. 30, 2012, following a few days of oral argument, the record shows.

On appeal, the plaintiffs argued that the trial court erred by rendering credibility determinations and concluding, as a result of those determinations, that the evidence warranted the entry of summary judgment; concluding that the matter was barred under Ohio law by the learned intermediary doctrine; and failing to properly address the plaintiffs’ claims of negligent misrepresentation and design defect.

On the first point, whether the trial court erred as a matter of law in concluding that Mary Pettit had not taken Paxil during her pregnancy, the appellate panel wrote that while the Philadelphia judge made a case for why a jury might not believe that Mary ever took the drug at all, let alone during pregnancy, “such conclusions do not comport with the applicable standard for summary judgment.

In citing the Superior Court case of Coleman v. Wyeth Pharmaceuticals Inc., the appeals panel wrote that in considering a motion for summary judgment, a lower court must “thoroughly examine the whole record to determine whether there is a genuine issue as to any material fact, with all doubts as to the existence of a genuine issue resolved against the moving party.”

The judges also wrote that credibility of evidence is not a proper consideration at the summary judgment stage because the trial court may not summarily enter judgment when the evidence depends on oral testimony.

Mary Pettit had testified during her deposition that her family physician, Dr. George Huntress, had provided her with a two-and-a-half month supply of Paxil in sample packaging, which she took from September through November 1996.

However, Dr. Huntress, who has since retired from medicine, never recalled treating Mary Pettit, the record shows.

Paxil was also apparently never prescribed by Mary’s obstetrician.

Mary’s husband, Dean, however, testified during his deposition that his wife had taken Paxil during the two-plus months leading up to her pregnancy, and that testimony is sufficient to create a genuine issue of material fact requiring a jury’s weighing in on the matter, the appeals panel wrote.

“Accordingly, the trial court erred in concluding otherwise and improperly granted summary judgment on this basis,” the panel wrote.

The judges also wrote that to survive summary judgment in a pharmaceutical failure to warn case, the Pettits also have to show proximate causation.

GlaxoSmithKline asserted that the Pettits waived any claim regarding the issue of proximate causation, and even if they hadn’t, the claim still fails because Huntress testified he could not recall ever reading the Paxil warning labeling.

The panel wrote that GSK correctly observed that the plaintiffs’ concise statement on appeal is devoid of any reference to this issue.

The ruling states that even though the trial court addressed the issue of the proximate causation and the learned intermediary doctrine in its opinion as an alternative basis for summary judgment, and their analysis would not be impeded, “we are constrained to conclude that the Pettits’ failure to include this issue in its concise statement prevents our review.”

Lastly, on the plaintiffs’ issue regarding the negligent misrepresentation and design defect claims under the Ohio Products Liability Act, the panel again agreed with GSK that the issues were considered waived because they were not raised in the plaintiffs’ concise statement of appeals.

The memorandum was written by Senior Superior Court Judge Eugene B. Strassburger III. He was joined by Judges Anne E. Lazarus and Paula Francisco Ott.

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