Avandia suit against GSK by woman who previously settled such claims dismissed by judge

By Jon Campisi | Sep 13, 2013

A judge has dismissed a complaint against GlaxoSmithKline’s chief

executive officer by a woman who sued over her husband’s death, which she alleged was related to the diabetes drug Avandia, ruling that the plaintiff’s claim was barred by a previous settlement agreement she signed with the drugmaker.

U.S. District Judge Cynthia Rufe, of the Eastern District of Pennsylvania, granted summary judgment to defendant Jean-Pierre Garnier in a pro se complaint he was facing by Madelyn Kirbyson, whose husband’s Sept. 27, 2005 death by myocardial infarction came after he took Avandia daily from late February the year prior up until he died.

Rufe refused to allow the civil suit against GlaxoSmithKline’s chief executive to proceed, she wrote, because the plaintiff settled nearly identical claims with the pharmaceutical company in the fall of 2011.

At the time, Kirbyson had signed a settlement agreement and confidential release in which the woman would forfeit her right to file any future claims against GSK and its officers in relation to her husband’s death.

The release, the record shows, defined GSK as the drug company as well as all past, present and future officers, directors, employees and members.

By the terms of the release, the judicial memorandum states, Kirbyson agreed to not seek anything further from GSK or “any other person or entity, including any other payment, in regard to such claims.”

In weighing in on the parties’ cross-motions for summary judgment, Rufe determined that Garnier was correct to seek dismissal of the suit due to the plaintiff’s previous signing of the settlement agreement and confidential release.

“It is undisputed that, prior to the filing of the present case against Mr. Garnier, Plaintiff asserted similar claims against GSK itself,” Rufe wrote. “Pursant to [the settlement and release], GSK made payment to Plaintiff of a confidential sum as consideration for the ‘release of all past, existing and future claims relating to Avandia, whether known or unknown.’”

Kirbyson signed the release on Oct. 12, 2011, in the presence of a witness, “with an acknowledgement that she understood the release and had the opportunity to obtain the advice of counsel regarding the release,” Rufe noted in her memorandum.

The woman’s lawyer signed the release about two weeks later.

After pouring over the release and the present complaint, Rufe determined that the document “explicitly covered all Avandia-related injuries to Plaintiff’s husband and her own derivative claims, and the claims set forth in the present complaint arise out of the same alleged conduct by GSK and the same alleged injuries to Plaintiff as the settled case,” the memorandum states.

Garnier, who was CEO of the drug company at the time of the plaintiff’s husband’s injuries, “clearly falls within the category of Related Entities and Persons,” Rufe wrote. “Accordingly, the Court finds that Plaintiff’s claims against Mr. Garnier are barred by the Release.”

Rufe also noted that under the laws of the State of Delaware, where the release was signed, an “unambiguous signed release is binding on the parties unless executed and procured by fraud, duress, accident or mutual mistake.”

The judge, however, refused to grant Garnier the attorney’s fees and costs he sought in connection with the litigation.

This decision came despite the fact that the release agreement permits the awarding of such fees.

Rufe dismissed the request for costs and attorney’s fees without prejudice to give Garnier a chance to renew his request for such reimbursement should the plaintiff file an unsuccessful appeal or otherwise continue to litigate claims barred by the terms of the release.

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