First Paxil lawsuit in plaintiff's favor

Professor Howard Erichson in Philadelphia Inquirer, October 18, 2009

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First Paxil lawsuit in plaintiff's favor
It's unclear what the jury's finding of negligence means to future cases. No punitive damages were awarded.

By Miriam Hill
Inquirer Staff Writer

Negligent, but not outrageous.

Those words cost GlaxoSmithKline P.L.C. a $2.5 million judgment - but ruled out additional, punitive damages, in a Philadelphia courtroom last week. The case was the first of about 600 lawsuits to go to trial on claims that the company's Paxil antidepressant caused birth defects in children whose mothers took the drug during pregnancy.

Legal experts saw the 10-2 jury decision as a big win for plaintiffs in the remaining cases, even though the jurors awarded only compensatory damages to Michelle David of Bensalem. The jury found that Paxil had caused heart problems in David's 3-year-old son, Lyam Kilker, who required several surgeries after his birth to fix his heart.

Jurors linked Lyam's problems to Paxil and said Glaxo had been negligent in not properly warning David's doctor of the drug's risk, but they did not find the London company's behavior outrageous, which would have been necessary to award punitive damages.

Glaxo, which employs several thousand people in this region, vowed to appeal.

"While we sympathize with Lyam Kilker and his family, the scientific evidence does not establish that exposure to Paxil during pregnancy caused his condition. Very unfortunately, birth defects occur in 3 to 5 percent of all live births, whether or not the mother was taking medication during pregnancy," the company said in a statement after the verdict was announced.

The standard for finding punitive damages requires evidence that a company knew about problems but ignored them or covered them up because the product was so profitable, said Drexel law professor Barry Furrow.

The emblematic case for this standard involved litigation over Ford's Pinto, in which documents surfaced that company executives knew the car was dangerous but decided that paying damages in lawsuits was cheaper than redesigning the car.

A host of variables will affect whether last week's decision is a bellwether for those that follow, legal experts said.

"Lawyers look to the first trial or to the first bunch of trials to get a sense of what the outcomes are likely to be in potentially hundreds of other cases," said Howard M. Erichson, a Fordham University Law professor.

But corporations typically fight hard even after initial defeats "to show plaintiffs' lawyers that there's no easy money," Erichson added.

Merck & Co. Inc. employed that strategy in litigation over its pain reliever Vioxx, fighting individual cases, and winning many, before agreeing to settle about 50,000 cases for $4.85 billion in 2008. That figure may seem large, but legal experts said it could have been higher if Merck had not shown its willingness to fight.

The process is like a battle where eventually the plaintiff "cries uncle" and drops the suit or the drug company agrees to settle, said Philadelphia plaintiffs' lawyer Tom Kline, who is handling some Paxil birth-defect cases.

Kline said last week's jury verdict was a strong win because birth defects were fairly common whether or not a pregnant woman takes a drug. That can make it hard to convince a jury that a product caused a birth defect, he said.

"The real hurdle is proving causation," said Kline, who has represented plaintiffs at trial in many cases involving birth defects.

Elizabeth Chamblee Burch, an assistant professor at Florida State University College of Law, said the risks to Glaxo extended beyond the courtroom.

"The company has to worry not only about pending litigation, but also about protecting its brand, which leads to a two-front battle," she said.

The drug, approved for U.S. use in 1992, generated about $942 million in sales last year, 2.1 percent of Glaxo's total revenue.

Glaxo is also fighting lawsuits in the United States, Canada, and the United Kingdom over claims that Paxil, also known by the generic name paroxetine, causes homicidal and suicidal behavior. The company has settled some suicide claims, though terms were not released.

In 2004, the drugmaker agreed to pay the state of New York $2.5 million to resolve claims that officials suppressed research showing Paxil may increase suicide risk in young people. The settlement also required Glaxo to publicly disclose the studies.

In 2001, a jury in Cheyenne, Wyo., ordered Glaxo to pay $6.4 million to the relatives of a man who shot his family to death and then turned the gun on himself after taking Paxil.