Pennsylvania Superior Court Upholds Dismissal of Suit Claiming Paxil Caused Birth Defects
The Pennsylvania Superior Court recently upheld the trial court’s ruling in Thomas v. SmithKline Beecham Corp., 27 Pa.D.&C. 5th 279 (Pa.Commw. Ct. 2012). Thomas dismissed plaintiff’s wrongful death and survival claims based on her use of the antidepressant drug Paxil during pregnancy as time barred. She ingested Paxil during her pregnancy and she was subsequently informed in 2001 that a fetal echocardiogram revealed that her fetus had congenital heart defects. Three days later she chose to undergo a therapeutic abortion at less than 23 weeks. In 2005, the FDA re-classified Paxil’s pregnancy risk from “C” to “D,” which indicates that there is positive evidence of fetal risk.
In March of 2007 , plaintiff contacted a consumer line on the website of SmithKline Beecham Corp. ( “GSK”), which manufactured Paxil, and a service representative informed her Paxil was a category C drug. This individual later confirmed Paxil was relabeled as a Category D drug. The plaintiff sued GSK alleging that it concealed information about Paxil’s classification by the FDA, and that this prevented her from investigating whether or not Paxil caused the fetus’s heart defects which led her to terminate the pregnancy.
In 2012 GSK moved for summary judgment and argued that plaintiff was not permitted to file a wrongful death or survival action because the fetus was not viable at the time of the therapeutic abortion. The Pennsylvania Supreme Court has previously held that a fetus is not viable earlier than 23 weeks. GSK also argued the wrongful death and survival claims were time-barred because suit was filed more than two years after the fetus was terminated.
The Court found the substance of plaintiff’s telephone conversation with a GSK representative in 2007 irrelevant because the statute of limitations expired in 2003. While Thomas upholds Pennsylvania’s bright-line rule establishing the viability threshold, it also confirms that wrongful death and survival claims must be filed within two years of the date a plaintiff knows or should have known of an injury. The plaintiff’s claim here was properly dismissed because she waited five years to investigate her claim.