Phila. federal judge certifies order for Third Circuit interlocutory review in Paxil pregnancy case

By Jon Campisi | Dec 30, 2013

A federal judge sitting in Philadelphia has agreed to certify an order for

interlocutory review with an appeals court in a Paxil products liability case.

U.S. District Judge Michael Baylson, of the Eastern District of Pennsylvania, granted a motion by plaintiff Theresa Powell seeking interlocutory review with the U.S. Court of Appeals for the Third Circuit that asks whether a defendant may remove a case a second time based on diversity jurisdiction more than a year after the commencement of the litigation.

Powell sued on behalf of her minor child, Madison Powell, back in June 2011 over claims that her daughter was injured because the mother ingested the antidepressant drug Paxil during pregnancy.

Records show that the month after the suit was filed as a short-form complaint in the Paxil Pregnancy Litigation in the mass tort program at Philadelphia Common Pleas Court, defendant GlaxoSmithKline removed the case to the Eastern District on diversity grounds and because the drug company is not a citizen of Delaware.

On Aug. 1, 2011, Chief Judge J. Curtis Joyner, of the Eastern District, entered an order consolidating Powell’s case with other Paxil claims that GSK had removed on similar diversity grounds.

The consolidated cases were subsequently assigned to Judge Timothy Savage to decide various plaintiffs’ motions to remand.

On Dec. 12, 2011, Savage remanded Powell’s case to Philadelphia’s Common Pleas Court, holding that GSK is a citizen of Pennsylvania and that its removal of the case was barred by the resident-defendant rule.

After that, three federal judges in Philadelphia reached conflicting decisions on the question of GSK’s citizenship and the issue was certified to the Third Circuit for interlocutory appeal.

On June 7 of this year, records show, the Third Circuit held that GSK is a corporate citizen of Delaware.

On Sept. 26 of this year, Baylson, of the Eastern District, granted Powell’s motion to remand her case to state court because GSK’s removal notice was filed more than a year after the action commenced and was thus untimely under federal procedural rules.

Defense attorneys then moved to have Baylson stay his order pending the outcome of other plaintiffs’ motions in similar Paxil claims.

Baylson granted a temporary stay through Dec. 2, records show.

In Baylson’s recent memorandum, the judge notes that a fellow jurist at the Eastern District recently granted plaintiffs’ motions to certify interlocutory review, while another U.S. District Court judge in Philadelphia denied plaintiffs’ motions to remand, simultaneously granting defense motions to transfer venue to the Middle District of Pennsylvania.

In his memorandum and order, which was filed on Dec. 19, Baylson wrote that he would certify the order for interlocutory review so that the Third Circuit can determine a “fair and uniform resolution for all similarly situated cases.”

“The Court finds the Order of September 26, 2013, ‘involves a controlling question of law as to which there is substantial ground for difference of opinion,’” Baylson wrote. “In order to maintain the status quo pending any decision by the Third Circuit, the Court will extend the stay until the Third Circuit has rendered a decision.”

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