Joseph E. O'Neil Assists GlaxoSmithKline in Mid-Trial Dismissal

April 5, 2016 01:57 PM

GlaxoSmithKline PLC on Monday scored a mid-trial dismissal of claims that its antidepressant Paxil caused cardiac birth defects as a Pennsylvania state judge ruled that the plaintiffs hadn’t presented sufficient evidence to support their case.

Judge Kenneth Powell in the Philadelphia County Court of Common Pleas granted GSK’s motion for compulsory nonsuit after ruling that physician Robert Kiehn had not testified that he would have altered his decision to prescribe Paxil to plaintiff Elisabeth Balser if presented with more adequate warnings about potential risks associated with the drug.

“It is not reasonable to infer based on the testimony that was presented that Dr. Kiehn would not have prescribed Paxil had he known the additional risk,” Judge Powell said in a ruling from the bench on Monday afternoon. “Based on the testimony presented by the plaintiff, all the jury could do is guess. I cannot permit the jury to speculate as to causation.”

Attorneys for GSK moved for a nonsuit on Monday morning after the plaintiffs rested the nearly two-week-old case they presented on behalf of a Mississippi boy with a condition known as tetralogy of fallot, a combination of several congenital heart defects, allegedly caused by Balser's use of Paxil during the early stages of his mother's pregnancy in 2003.

Balser’s is the first of nine cases queued up for trial as part of a mass tort program pending in Philadelphia County.

IADC President Joseph O’Neil, an attorney with Lavin O’Neil Cedrone & DiSipio representing GSK, told Judge Powell during oral arguments on the nonsuit motion that a claim over the company’s alleged failure to provide adequate warnings could not go to the jury because Kiehn had not testified that he would have acted any differently if provided with additional information about potential birth defects.

“That is a deal breaker,” O’Neil said. “To allow this case to go to a jury is to allow the jury to engaged in pure, unadulterated speculation as to what Dr. Kiehn would have done."

Adam Peavy, an attorney with Bailey Peavy Bailey Cowan Heckaman PLLC, argued that portions of Kiehn’s videotaped deposition had been improperly excluded from their case under Judge Powell’s interpretation of a pretrial order barring mention of subsequent remedial measures GSK may have taken to address problems with the drug.

“To suggest that the question was never asked is not accurate,” he said. “It was asked multiple times about what he would’ve done with a different warning, or if he was warned about Paxil causing birth defects. Your honor excluded that evidence.”

Rader is represented by Adam Peavy of Bailey Peavy Bailey Cowan Heckaman PLLC  and James Morris Jr. of Morris Law Firm.

The case was presented for GSK by Todd Davis of King & Spalding.

The case is Braden Rader et al. v. SmithKlineBeecham Corp. et al., case number 110903672, in the Court of Common Pleas of Philadelphia County, Pennsylvania.

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