Judge lifts stay on thalidomide products liability suit against GSK

A federal judge in Philadelphia has restored to the court’s active docket a

products liability complaint initiated by a Louisiana resident against drugmaker GlaxoSmithKline over allegations that the drug thalidomide, designed to treat morning sickness in pregnant women, led to the plaintiff being born with various physical deformities.

In an Aug. 12 order, U.S. District Judge William H. Yohn, who sits in the Eastern District of Pennsylvania, lifted a stay that he had issued late last year in a case filed by Debra Johnson, who was born at England Air Force Base Hospital in Louisiana in 1959 with multiple serious birth defects.

The woman says she was born with clubbed hands, a shortened forearm and other deformities due to her mother using the drug thalidomide, which the lawsuit states was developed in the 1950s by the German pharmaceutical company Grünenthal.

The man who created the drug was Heinrich Mückter, a former Nazi Party member who headed the research department at Grunenthal.

It was claimed that the drug was an effective antiemetic that had an inhibitory effect on morning sickness, leading thousands of pregnant women to use the product to relieve their symptoms, according to the complaint.

The litigation alleges that throughout the 1950s and 60s, more than 10,000 children in 46 countries were born with deformities tied to their mothers’ use of thalidomide.

The drug was never approved for use in the United States by the Food and Drug Administration, the suit says, but it was nevertheless distributed by the defendants to at least 20,000 patients in the country.

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

Johnson filed her complaint in September of last year at the Philadelphia Common Pleas Court; the defendants subsequently filed a removal notice seeking to transfer the matter to the U.S. District Court in Philadelphia because complete diversity exists between the parties.

The filing of a notice of removal is a fairly common practice in products liability cases involving corporate defendants headquartered outside of Pennsylvania.

In the Johnson case, Yohn initially stayed the proceedings pending a review by the U.S. Third Circuit Court of Appeals to address issues raised by the plaintiff in her motion to remand the litigation back to state court in Philadelphia.

The Third Circuit in the meantime had ruled in a case titled Johnson v. SmithKline Beecham Corp., which raised similar jurisdictional issues to those raised in the present case, that the drugmaker defendants were not Pennsylvania citizens, meaning removal to the federal court was proper.

On Aug. 8, attorneys from the Philadelphia firm Spector, Roseman, Kodroff & Willis, and the Seattle-based firm of Hagens Berman Sobol Shapiro LLP, who collectively represent the plaintiff, filed a motion asking Yohn to lift the stay in light of the Third Circuit’s ruling in Johnson.

Based on the other ruling, the memorandum in support of the stay’s lifting states the plaintiff understands that the court must deny her motion to remand the present case to Common Pleas Court.

“Plaintiff therefore requests that this Court lift the stay of proceedings in this matter, rule on the motion to remand, and permit this matter to proceed,” Johnson’s lawyers wrote last week.

The docket sheet in the case shows that various filings since the initial commencement of the lawsuit have been docketed under seal.

As for the meat of the litigation, the plaintiff alleges that her mother, Doris Layssard, only took thalidomide for about a week because of its extreme sedative effect, but that Johnson was nevertheless permanently altered because of Doris Layssard’s use of the medication.

Johnson, the suit states, was never told that her injuries, which caused her to wear casts and braces in an attempt to straighten her arms, were caused or may have been caused by her mother’s use of thalidomide.

“Her medical records obtained to date describe her birth defects as congenital, and make no mention of thalidomide,” the lawsuit reads. “Debra was treated by a team of doctors as a child, and they encouraged her parents to treat Debra like a normal child. Debra was always told by her parents that this was how God made her.”

According to the complaint, the pharmaceutical companies behind thalidomide told the public and the United States Congress that thalidomide-caused birth defects that permeated Europe couldn’t happen in the U.S. because the drug was available only on a limited “clinical trial” basis.

Recent evidence, however, indicates that “the story that thalidomide did not cause injuries in the United States was not the truth,” the suit reads. “Instead, it was a carefully constructed story sold to the public to protect Defendants from having to accept responsibility for what they had done.”

And what the drugmakers had done, the complaint asserts, “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 suit alleges that GSK medically experimented on patients by distributing thalidomide to doctors without adequate testing and in reckless disregard of the risks presented to developing fetuses in women who were pregnant.

“In the decades that have passed,” the complaint states, “the companies that distributed thalidomide in the United States have continued to cover up the tragic truth about what each knew and did – denying justice to their many victims.”

Johnson claims that she wasn’t told by her mother that the woman had taken thalidomide during pregnancy until February of this year.

The record shows that GlaxoSmithKline and its subsidiary defendants are being represented by attorneys Michael T. Scott and Melissa A. Wojtylak, of the Philadelphia firm Reed Smith LLP.

The federal case number is 2:12-cv-05455-WY.