Allocatur Sought in Pharma Case Alleging Birth Defects

By P.J. D’Annunzio
Of the Legal Staff

A petition for allocatur has been filed in the case of a woman who claimed that her use of an antidepressant during pregnancy caused birth defects necessitating an abortion.

The petition for allowance of appeal before the state Supreme Court in Thomas v. GSK was filed Thursday. The petition challenges the Nov. 27 Superior Court ruling that GlaxoSmithKline (GSK) did not fraudulently conceal information about the U.S. Food and Drug Administration birth-defect risk classification of its drug Paxil from plaintiff Joanne Thomas. Given there was no fraudulent concealment to toll the statute of limitations, the Superior Court ruled the case was time-barred.

Additionally, the court ruled that since Thomas' unborn baby did not reach the fetal gestational age of 23-24 weeks, it was not considered "viable" in terms of a wrongful death/survival claim.

The petition for allowance of appeal said that “although wrongful-death claims accrue at the time of death, the doctrine of fraudulent concealment prevents a defendant from invoking the statute of limitations when its actions mislead Thomas or cause her to relax her vigilance in looking into the cause of death.”

Thomas, who said this case is one of first impression, is seeking to appeal on two main issues: whether the court’s prior rulings on what constitutes a viable fetus should be reconsidered and whether the statute of limitations should be tolled in this case or “is a defendant shielded from liability, when a defendant fraudulently conceals information from the general public and the plaintiff that is necessary for a plaintiff to determine that a cause of action exists against the defendant generally or under the Wrongful Death Act,” Thomas said in the petition.

GSK’s attorney, Joseph O’Neil of Lavin, O'Neil, Ricci, Cedrone & DiSipio, and Mary Anne Rhyne, director of U.S. external communications at GSK, did not immediately return calls seeking comment. Havertown-based Daniel J. Siegel is appellate counsel for Thomas.

Judge Paula Francisco Ott wrote in the court's unpublished memorandum that GSK did not take affirmative measures to conceal from Thomas specifically any potential risk of birth defects related to taking Paxil during pregnancy.

"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 [s]he has commenced suit," Ott said. "The trial court determined that ... GSK's conduct did not amount to fraudulent concealment. Based on our review, we find no error. The trial court's decision is sound."

In a separate concurring memorandum, Senior Judge Eugene B. Strassburger III said that while the court's ultimate decision was correct, he took issue with its reasoning on the issue of alleged fraudulent concealment.

On April 26, 2001, Thomas voluntarily chose to have a therapeutic abortion after a pediatric cardiologist informed her that her unborn son, Ryan Swindle, at the estimated fetal age of 22-and-a-half weeks, had congenital heart defects, according to Ott.

Thomas alleged that during a phone call to a GSK consumer line March 8, 2007, nearly six years later, a GSK representative incorrectly told Thomas that Paxil was a "Category C" drug in relation to the FDA's fetal injury risk categories. According to Ott, the representative later confirmed that Paxil was a "Category D" drug, or one that presents a greater risk of fetal injury than "Category C."

According to Ott, Thomas claimed that the state's fraudulent concealment doctrine tolled her claims until December 2005, when GSK changed its warnings on Paxil.

In terms of the statute of limitations, Ott cited the trial court's opinion, in which now-retired Judge Sandra Mazer Moss wrote, "There are exceptions that act to toll the running of a statute of limitations. The discovery rule and the doctrine of fraudulent concealment are such exceptions," however, "in order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiff justifiably relied."

P.J. D'Annunzio can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @PJDAnnunzioTLI.

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