PENNSYLVANIA RECORD

A state appellate court panel has sided with pharmaceutical giant

GlaxoSmithKline in a Paxil wrongful death claim that had been filed by a woman who maintained she was essentially forced to have an abortion because her unborn child developed severe, in-utero birth defects due to her use of the antidepressant medication during pregnancy.

In a non-precedential decision filed on Nov. 27, the three-judge Superior Court panel wrote that a Philadelphia Common Pleas Court judge was correct in July 2012 to issue summary judgment to the drugmaker in a case initiated by Joanne Thomas on behalf of her deceased child, Ryan Swindle.

In her lawsuit, Thomas had argued that she voluntarily chose to have a therapeutic abortion in late April 2001, three days after an echocardiogram showed that the fetus had congenital heart defects.

The woman’s doctor did not determine the cause of the injuries.

In the spring of 2007, while studying for her nursing boards, Thomas claimed that she learned Paxil ingestion could have been behind her son’s birth defects.

The woman filed suit against GlaxoSmithKline in late November 2007, alleging her Paxil use during pregnancy caused her son’s wrongful death, the record shows.

In moving for summary judgment, lawyers for the drug company argued that Thomas could not bring a wrongful death or survival action because her fetus was not viable at the time of her therapeutic abortion.

The defendant argued that the child either must be born alive or it must be a viable fetus, capable of an independent existence at death.

Under Pennsylvania law, viability occurs no earlier than 23 weeks gestational age.

The fetal death certificate in this case listed Swindle’s gestational age as 21-and-a-half weeks.

GlaxoSmithKline also argued that even if the fetus was viable when aborted, any claim would be barred under Pennsylvania’s two-year statute of limitations because Thomas initiated her case more than six years after Swindle’s death.

Thomas counter-argued that Swindle was actually more like 23 weeks gestational age at the time of abortion, since three days prior to his death a cardiologist estimated the age to be 22-and-a-half weeks, records show.

The plaintiff also argued that the statute should be equitably tolled under the doctrine of fraudulent concealment.

Thomas asserted that GlaxoSmithKline’s safety misrepresentations hindered her ability to discover what caused the birth defects prior and subsequent to the abortion.

The defense argued that Thomas failed to establish fraudulent concealment and merely repeated her “overarching ‘failure to warn claims’ rather than establishing evidence that GSK committed ‘an affirmative, independent act of concealment directed towards Plaintiff upon which she justifiably relied,’” the appellate ruling notes.

In granting summary judgment to GlaxoSmithKline, a Philadelphia Common Pleas Court judge determined that Thomas was unable to overcome the “critical viability threshold because she cannot prove the fetus actually reached 23 weeks,” and that even if the woman could prove such a claim, there was no way of getting around the fact that she filed her case well beyond the two-year statute of limitations.

In its ruling, the appeals panel declined to reach the issue of fetal viability because the second issue, that concerning the fraudulent concealment doctrine, is dispositive.

State court precedent supports the trial judge’s decision, the Superior Court judges wrote.

“As already mentioned, the plaintiff bears the burden of proof, and must demonstrate fraudulent concealment by ‘clear, precise, and convincing evidence,’” the panel wrote. “This Court has emphasized that the alleged act must have caused the plaintiff ‘to deviate from the right of inquiry’ as to the matter upon which he has commenced suit.

“Here, the trial court determined that, since the conduct alleged was a general failure to warn the public that Paxil may be harmful to an unborn child, as opposed to conduct directed specifically toward Thomas, GSK’s conduct did not amount to fraudulent concealment,” the appeals ruling continues. “Based on our review, we find no error. The trial court’s decision is sound.”

The panel went on to write that the determination of whether statements in question amount to fraudulent concealment is a question for the court rather than the jury.

“Because Thomas never alleged any affirmative misrepresentations directed specifically at her, we conclude the trial court properly determined that the fraudulent concealment doctrine did not apply, and that GSK was entitled to summary judgment as a matter of law.”

The judges handling the appeal were Mary Jane Bowes, Paula Francisco Ott and Eugene Strassburger.

Ott wrote the decision.

Strassburger filed a concurring memorandum in which he stated that he disagreed with the majority’s conclusion that fraudulent concealment, under these circumstances, required the drug company to direct a specific act toward Thomas.

He concurred with the majority, however, because Thomas waived this issue for appeal.

Strassburger also determined that there were genuine issues of material fact regarding the gestational age of the fetus, but he concurred on that basis as well due to the dispositive nature of the statute of limitations argument.