The Legal Intelligencer Blog

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Judge Paula Francisco Ott wrote in the court's unpublished memorandum that GSK did not take affirmative measures to conceal from Thomas specifically any potential risk of birth defects related to taking Paxil during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

PAJ Asks to Reargue Restatement Case

By Max Mitchell
Of the Legal Staff

An amicus curiae in a high-profile products liability case has asked the state Supreme Court to hear its separate arguments in the case even though the justices heard from both the plaintiffs and defendant during an oral argument session more than a month ago.

The Pennsylvania Association for Justice made the unprecedented request of the high court in Tincher v. Omega Flex on Nov. 25. Through its application for relief, the PAJ argued that counsel for the plaintiffs had conflicting interests and failed to stick to the positions outlined in its appellate brief.

The case is believed to be the test case for whether the courts will adopt what some see as the more defense-friendly Restatement (Third) of Torts, or continue using the Restatement (Second) of Torts, which is thought to be more favorable to plaintiffs.

Writing the brief on behalf of the PAJ, Clifford A. Rieders, of Rieders, Travis, Humphrey, Harris, Waters, Waffenschmidt & Dohrmann, contended that Cozen O’Connor, which was counsel for the Tinchers, was conflicted because the firm had argued for the application of the Third Restatement in previous cases.

“The position urged at argument by counsel for the Tinchers represents a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by amicus curiae PAJ,” Rieders said in the brief. “A broader interest exists, however, on behalf of injured consumers in product liability cases, which deserves vigorous representation before this court.”

The brief further contended that attorney Mark Utke, who argued the case for the plaintiffs before the high court, strayed from the appellate brief when he conceded during the session that the court did not need to uphold its 1977 ruling in Azzarello v. Black Brothers, which upheld the Second Restatement.

In Azzarello, the court found that the phrase "unreasonably dangerous" in the Second Restatement did not refer to issues of negligence and determined that considerations of negligence are inappropriate in a strict liability case. Plaintiffs and defense counsel agreed during oral arguments that Azzarello went too far in its attempt to protect plaintiffs, and should be reversed.

“The impact of a court decision reversing Azzarello or abandoning the Restatement Second Section 402A is so significant that it should not be determined based upon a subrogation case essentially ‘owned’ by [an] insurance company and argued by one who is not committed to consumer protection policies,” Rieders said.

Tincher involves a couple that sued the flexible natural-gas piping company Omega Flex because electricity from a lightning strike burned a hole in the Omega Flex gas pipe installed at their home and then allegedly caused the house to burn down. According to court papers, the jury found in favor of the couple on a strict liability claim, not a negligence claim.

According to the PAJ brief, USAA Insurance Co. compensated the Tinchers for their damages and brought the suit seeking reimbursement from Omega Flex.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.

Law Abolishing Jury Commissioner Offices Ruled Constitutional

By Max Mitchell
Of the Legal Staff

The Pennsylvania Supreme Court has ruled that a Pennsylvania law abolishing jury commissioner offices did not violate the Pennsylvania Constitution.

On September 17, the Supreme Court issued an order affirming the Commonwealth Court's July 31 decision to uphold Act 4 of 2013, which Governor Tom Corbett signed in May. The law allows counties to elect to abolish jury commissioner officers.

During oral arguments before the Supreme Court last week, Samuel C. Stretton, counsel for the Pennsylvania State Association of Jury Commissioners, argued that the jury commissioner office plays a key role in the judicial system, and therefore the law is a violation of the separation of powers doctrine and an unlawful delegation of powers to the county governing bodies. John Bartley Delone, of the state Office of Attorney General, argued that the law will only abolish the administrative offices, and that the judiciary will retain control of the court.

The Supreme Court order noted that Justice Debra M. Todd dissented from the opinion. The order further said that opinions on the decision will follow.

- Read more about it in an upcoming issue of The Legal.

 

State Petitions Supreme Court for Reargument in Act 13 Case

By Zack Needles
Of the Legal Staff

With the state Supreme Court back up to full complement, the Pennsylvania Public Utility Commission and Department of Environmental Protection have petitioned for reargument in the case over the zoning provisions of the Act 13 amendments to the Oil and Gas Act.

The PUC and DEP filed their petition in Robinson Township v. Commonwealth on August 6, eight days after former state Superior Court President Judge Correale F. Stevens was sworn in as the new justice, replacing former Justice Joan Orie Melvin, who resigned in May following her conviction on political corruption charges.

Last July, a deeply split en banc Commonwealth Court invalidated as unconstitutional amendments to the state's Oil and Gas Act requiring municipalities to adopt uniform zoning ordinances that would allow drilling in all zoning districts.

The court ruled 4-3 in Robinson Township to overturn Section 3304 of 58 Pa.C.S., known as Act 13 of 2012, reasoning that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

The Supreme Court heard oral arguments in the case in October and a ruling is pending.

The PUC and DEP argued in their petition that, because the Commonwealth Court was so deeply split, the case should not be decided by a six-justice court.

The PUC and DEP said the ruling “will impact not only core inter-government relationships, but will also affect communities across the commonwealth in various economic, social and environmental ways.”

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

Attorney Disagrees Precedent Pre-empts Judicial Retirement Suit in Commonwealth Court

By Amaris Elliott-Engel
Of the Legal Staff

During Pennsylvania Supreme Court oral arguments in two lawsuits challenging mandatory judicial retirement, Justice J. Michael Eakin asked about another lawsuit currently pending in the Commonwealth Court and whether all three cases could be tossed because the high court, in Gondelman v. Commonwealth, has previously rejected a constitutional challenge to mandatory retirement.

J. Bart DeLone, a senior deputy attorney general who argued against overturning the retirement requirement in both the Supreme and Commonwealth courts, said in response to Eakin that Gondelman does control all three cases.

However, one of the attorneys for the judicial plaintiffs in the Commonwealth Court case said in an interview that their lawsuit differs from the two lawsuits taken up by the Supreme Court under its extraordinary jurisdiction.

Tom Groshens, of Sprague & Sprague, said in an interview that “our case includes claims by qualified voters who contend that mandatory retirement deprived them of the efficacy of their vote for [Commonwealth Court Senior] Judge [Rochelle S.] Friedman for a 10-year term because that 10-year term was cut short by three years.” The lawsuit also involves a challenge to the 2001 constitutional amendment that changed the mandatory retirement from the birthdays on which judges turn 70 to the end of the year in which judges turn 70.

Some judges get to serve longer than others just because of when their birthdays fall, which is “amplified discrimination,” Groshens said.

Further, the presiding judge in Commonwealth Court, Senior Judge James Gardner Colins, said that he was not sure Gondelman applies to all the theories in the Friedman suit – “indeed, the people elected the individual jurists to a 10-year term,” Groshens pointed out.

When asked for comment, a spokesman for the Attorney General’s Office referred The Legal to the government’s brief.

The presence of the three voters is beside the point, because they “are presenting the same claim that the Supreme Court rejected in Gondelman,” DeLone, Attorney General Kathleen G. Kane and John G. Knorr III, chief deputy attorney general, wrote in the Commonwealth Court brief.

While the plaintiffs claim the 2001 amendment “exacerbates the violation of Article I,” the state’s brief said. “But this, too, can make no difference: the holding in Gondelman is that in forming or altering their government, the people are not constrained by the provisions of Article I,” which spells out the fundamental rights Pennsylvanians have under the state constitution.

The Legal’s full coverage of the oral arguments can be read here.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Orie Melvin's Resignation Official Today

By Amaris Elliott-Engel
Of the Legal Staff

Suspended Justice Joan Orie Melvin's stint on the Pennsylvania Supreme Court is over today.

In March, Orie Melvin, who was convicted of political corruption earlier this year, resigned from the high court. The resignation is effective today. Orie Melvin's sentencing is scheduled in Allegheny County Court of Common Pleas for May 7. The Legal is set to cover the sentencing.

Governor Tom Corbett now has 90 days to nominate a lawyer or judge to serve on the high court until Orie Melvin's seat can be placed on the ballot for the 2015 election. Two-thirds of the state Senate must vote in favor of the interim justice. Republicans control the upper house but do not have enough party members to muster two-thirds on their own. The Senate Democratic leadership has stated that a more moderate nominee from Corbett is necessary in order to garner their party support.

Members of the Supreme Court have differed on whether the court would appoint an interim justice on its own. Justice J. Michael Eakin has commented that while he thinks the high court has the power to appoint an interim justice, he does not think the court will do it out of respect for the separation of powers between the branches of government. In contrast, Chief Justice Ronald D. Castille has said the court would consider appointing a senior judge.

What all agree on is that having three-three splits from a six-member court on important legal issues is a bad thing.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Reporter's Notebook: Pro Bono Program May Help Traffic Court Image

By Amaris Elliott-Engel
Of the Legal Staff

As part of reporting a story on the future of the Philadelphia Traffic Court after allegations of ticketing-fixing have become widely publicized, I learned about an upcoming program that is aiming to help ex-convicts set up payment plans for past traffic infractions in order to get their driver’s licenses restored. The full story on the Pennsylvania Supreme Court weighing the future of Traffic Court can be found here. 

One new program that has its auspices from people outside of the FJD may help public perception of the court, Philadelphia Court of Common Pleas Judge Gary Glazer, administrative judge of the Traffic Court, said.

Two students from Temple University’s Beasley School of Law, under the supervision of Montgomery McCracken Walker & Rhoads attorneys, including Ellen Brotman, are going to work with ex-convicts on setting up payment plans for past traffic tickets so that they can get their driver’s licenses restored.

U.S. Magistrate Judge Timothy R. Rice of the Eastern District of Pennsylvania, one of the judges presiding over a court that gives federal prisoners a break on their prison terms if they successfully complete reentry court, said the idea for the program came about because so many of the reentry court participants have past traffic infractions that built up fines while they were incarcerated.

Not having a driver’s license is the biggest impediment, besides not having a general equivalency diploma, for former defendants getting jobs, Rice said.

Many employers will hire people who have been convicted of felonies, but they need licenses in order to get to work, Rice said.

“It has the potential to be a marvelous addition and help to the system,” Glazer said.

Rice also said that, while the program will initially focus on helping reentry court participants, that the program may expand to help other defendants.

(In full disclosure, Rice is teaching a course in which the author of this blog is enrolled.)

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court mulling the “error in judgment rule” in medical malpractice cases. As reporter Ben Present writes, an attorney representing the estate of a two-month-old baby who died from a viral infection of the heart told the court Wednesday that the trial court’s jury instruction discussing the rule reflected precarious legal terrain.

Below the fold on Page 1, reporter Zack Needles writes that the state Superior Court has denied Cozen O’Connor’s request to reopen a discontinued suit filed against it by former Wolf Block attorneys in order to get a ruling that the statute of limitations wasn’t tolled.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that the Third Circuit has suggested that U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania amend the time limit he imposed for an upcoming trial.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Franchise Law column on Page 5, Craig R. Tractenberg writes a report from the Restaurant Development and Finance Conference that took place in Las Vegas.

In a Legal Marketing column on Page 7, Abby Raanan and Jennifer Smuts write about building relationships and the value of alumni programs.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court ruling that “highly reckless” conduct is an affirmative defense in products liability cases. As reporter Zack Needles writes, it requires defendants to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of the plaintiff’s injuries.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that attorneys may become mandated reporters of child abuse if one of the recommendations suggested by a task force created in the wake of the Jerry Sandusky and Archdiocese of Philadelphia priest sex-abuse scandals is passed into law.

Below the fold on Page 1, reporter Gina Passarella writes that a federal court refused to disqualify William Pietragallo from representing a defendant in a case in which he had previously contemplated representing the plaintiff.

In more Regional News on Page 3, Zack Needles writes that Spector Gadon & Rosen has started an energy and environmental practice group with the addition of environmental lawyer Kermit L. Rader, who will chair the group.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Julie A. Uebler writes about what employers can do to decrease the risk of employment litigation.

In a Trusts and Estates column on Page 7, Robert H. Louis writes about planning in an uncertain planning environment as we come to the end of 2012.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

State Supreme Court to Expand Public Access to Court Finances

By Ben Present
Of the Legal Staff

Journalists and interested Pennsylvanians will soon have easier access to more financial information for the state’s trio of appellate courts and their administrative offices, the state Supreme Court ordered Thursday.

The Administrative Office of Pennsylvania Courts said in a press release that it would be expanding Rule of Judicial Administration 509 to include expenditure and personnel salary information for the Commonwealth, Superior and Supreme courts on a website expected to be made available by the middle of next month.

The release noted the Supreme Court’s decision to expand access to its finances was aligned with the goals espoused by recent legislation aimed at providing Pennsylvanians with more information about government spending.

“The expansion of the fiscal disclosure policy is consistent with the principles of the recently enacted (Pennsylvania Web Accountability, Transparency and Contract Hub) Act, balanced with the Supreme Court’s constitutional authority to independently administer the judicial branch,” the press release said. “Like this action by the Supreme Court, PennWATCH is aimed at fostering accountability and transparency by mandating the posting of state government expenditures and compensation on a searchable website.”

In 2009, the Supreme Court created a website offering search options for summaries of state court contracts and purchases of $5,000 or more. Thursday’s order expands Rule 509 on a number of levels. Among the financial records that will be contained on the website, according to the release:

• Appropriation names, descriptions and annual funding amounts.
• Expenditure data, including the names and addresses of the person or entity receiving payment, how much, and the applicable appropriation and fiscal year.
• Annual salaries for court positions (updated monthly), total compensation for the prior year.

The individual names tied to each position will not be listed on the website “out of concern for employee security and respect for personal privacy,” the release said.