SSRI Ed note: Man is prescribed Paxil, no warning about adults, he commits suicide, court refuses to acknowledge connection to death.

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DEBRA VANDERWERF  v.  SMITHKLINE BEECHAM CORPORATION, d/b/a Glaxosmithkline, Defendant-Appellee.

No. 08-3218.

United States Court of Appeals, Tenth Circuit.

April 27, 2010.

Before HENRY, Chief Judge, BRISCOE and LUCERO, Circuit Judges.

HENRY, Chief Judge.

The plaintiffs, the Vanderwerf family and the estate of William K. Vanderwerf, appeal the district court’s grant of summary judgment to SmithKline Beecham Corporation (“SKB”), the pharmaceutical company who manufactured paroxetine, under the label Paxil, a medication prescribed to the decedent, who later committed suicide. We are unable, however, to overlook the ill-timed filing of the Vanderwerfs’ notice of appeal, because without a timely notice of appeal, we are deprived of jurisdiction to review the merits of the action. As a result of the plaintiffs’ sua sponte withdrawal of their motion for reconsideration, their appeal is from an order entered seven months earlier. We must grant SKB’s motion to dismiss this appeal as untimely filed.


The Vanderwerfs suffered a tragic loss when their family’s father, William, who suffered from clinical depression, committed suicide in 2003. The family brought suit seeking damages from SKB, the manufacturer of Paxil, which Mr. Vanderwerf had been prescribed to reduce his depression and anxiety. In various claims asserting strict liability, negligence and breach of implied warranty, the complaint alleged that SKB failed to warn or instruct about the risks of Paxil. The Vanderwerfs further alleged that SKB did not adequately warn Mr. Vanderwerf’s treating physicians that Paxil increases the risk of suicidal behavior and/or suicide precursors across all psychiatric disorders for adults of all ages. Under this theory, had the treating physicians received such warnings, they would have (1) not prescribed Paxil; (2) monitored Mr. Vanderwerf more closely; and/or (3) warned Mr. Vanderwerf and his family of the increased risk. The Vanderwerfs claimed that had any of these three events taken place, Mr. Vanderwerf would not have committed suicide.

SKB moved for summary judgment, arguing that (1) the court should exclude the testimony of the Vanderwerfs’ proffered witness, Dr. Peter Breggin; (2) without an expert’s testimony the Vanderwerfs cannot methodologically prove general or specific causation; and (3) the Vanderwerfs could not demonstrate proximate causation because, had SKB provided additional warnings to the treating physicians, the doctors would not have changed their course of treatment.

On January 9, 2008, the district court, in a thirty-one page order, granted summary judgment to SKB. The court first noted that because suicidality occurs in many people who are not exposed to Paxil or any other medicine, the plaintiffs needed to present expert testimony to meet their burden of proving medical causation that Paxil can cause suicide (general causation) and that Paxil more likely than not caused Mr. Vanderwerf’s suicide (specific causation). The court excluded Dr. Breggin’s testimony “[f]or substantially the reasons stated in [SKB’s motion to exclude Dr. Breggin’s testimony and its reply brief in support of that motion].”[ 1 ] Aplts’ App. vol. XII, at 2354 (Dist. Ct. Order, filed Jan. 9, 2008).

As to general causation, the district court also found that (1) Dr. Breggin did not put forth an accepted methodology for determining general causation (i.e., that Paxil can cause suicide); (2) failed to account for the substantial body of evidence indicating no causal link between Paxil and suicide or suicidal behavior in adults, particularly those beyond the age of thirty; and (3) did not sufficiently distinguish statistical “association” from causation. Id.

The court similarly concluded that because Dr. Breggin could not testify, the Vanderwerfs could not establish that Paxil more likely than not caused Mr. Vanderwerf’s suicide (i.e., specific causation). Id. at 2358. The court stated that even given SKB expert Dr. John Kraus’s testimony, any conclusion that Paxil more likely than not caused Mr. Vanderwerf’s suicide “would be sheer speculation.” Id. Because the Vanderwerfs offered no evidence of specific causation aside from the testimony of Dr. Breggin, the court sustained SKB’s motion for summary judgment on this alternative ground.

Finally, the district court determined that even had the Vanderwerfs established general and specific causation, they could not establish proximate causation. Under Kansas’s learned intermediary doctrine,[ 2 ] the court first assumed that SKB should have provided labeling and warnings that (1) Paxil increased the risk of suicidal behavior and (2) Paxil increased the risk of suicide precursors such as activation, overstimulation, anxiety, insomnia and agitation. Additionally, the court assumed that Paxil could have provided a warning consisting of information that SKB disclosed in 2006 in the DHCP letter that there existed a “possible increase in risk of suicidal behavior” in adults who took Paxil. Aplts’ App. at 2345.

The court acknowledged the Vanderwerfs’ argument that if there had been a warning that Paxil increased the risk of suicide in adults, Dr. John Crane, Mr. Vanderwerf’s treating physician at the time of the suicide, would have passed along the additional warning and “watched [Mr.Vanderwerf] considerably closer.” Id. at 2364. Dr. Crane testified that he might “not even have used [Paxil] in a certain individual,” had he known of the risks involved. Id. But given the positive results Mr. Vanderwerf had shown while on Paxil, however, the court understood that the treating physicians would still prescribe Paxil for Mr. Vanderwerf. Thus, the court concluded that the argument that the treating physicians “may not have used [Paxil] in a certain individual” was speculative and did not raise a genuine issue of fact as to the prescription for Mr. Vanderwerf.

In granting summary judgment t
o SKB, the district court concluded that “[s]peculation about how this tragedy might have been avoided is absolutely understandable and perhaps inevitable, but [the Vanderwerfs] cannot escape summary judgment based on speculation.” Id. at 2367.

On January 17, 2008, eight days after the district court granted summary judgment to SKB, the Vanderwerfs filed a Rule 59(e) Motion to Reconsider arguing that the district court incorrectly granted summary judgment based on the flawed determination that the Vanderwerfs had presented insufficient evidence of general, specific and proximate causation. Despite the passage of about seven months, the district court did not act on the motion to reconsider. Counsel for the Vanderwerfs report they telephoned the district court judge’s chambers and spoke to a law clerk on two occasions, each time inquiring into the status and likelihood of a ruling on the motion. But on August 8, 2008, counsel decided to file a notice of withdrawal of the Rule 59 motion, and also filed a Notice of Appeal. Unfortunately, the timing of this Notice of Appeal deprives this court of jurisdiction.


We recognize the severity of today’s holding, and empathize with the plight of parties who are effectively prohibited from filing a notice of appeal because of the inaction of a district court. But we must rely upon the unambiguous standard we have consistently applied to the timeliness requirements of Rule 4. Quite simply, “[t]he time to file an appeal in a civil case is tolled by the timely filing of a motion listed in Rule 4(a)(4)(A), and begins to run anew from the entry of the order disposing of the last such remaining motion.” 16A Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Catherine T. Struve, Federal Practice & Procedure § 3950.4 (4th ed. 2008) (footnotes omitted). The order from which the Vanderwerfs appeal was filed in January 2008, seven months earlier. Because timely notice of appeal is mandatory and jurisdictional, we lack jursidiction to consider this appeal. See Browder, 434 U.S. at 264. Accordingly, we hold that the Vanderwerfs’ untimely filing of the notice of appeal of the order granting summary judgment divested this court of jurisdiction, and we GRANT SKB’s motion to dismiss and we DISMISS the appeal.

LUCERO, J., dissenting.

My colleagues in the majority conclude that we lack jurisdiction because the notice of appeal was untimely. Yet the plain language of Federal Rule of Appellate Procedure 4 provides that the thirty-day deadline for the Vanderwerfs to file their notice of appeal has not even begun to run. Thus I respectfully dissent.

As the majority notes, under the Federal Rules of Appellate Procedure, a party may appeal from a district court judgment by filing a notice of appeal within thirty days of the entry of the order or judgment. (Majority Op. 7 (citing Fed. R. App. P. 3, 4(1)(A)).) Our circuit treats the timely filing of a notice of appeal as “mandatory and jurisdictional.” Alva v. Teen Help, 469 F.3d 946, 955 (10th Cir. 2006). Rule 4, however, tolls the thirty-day deadline under certain circumstances. If a party timely files a motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e), then “the [thirty-day deadline] to file an appeal runs for all parties from the entry of the order disposing of” that motion or any other motion that tolls the deadline under Rule 4. Fed. R. App. P. 4(a)(4)(A)(iv).

Summary judgment was entered for SmithKline Beecham (“SKB”) on January 9, 2008. The Vanderwerfs filed a motion to alter or amend the judgment on January 17, 2008, well within the filing deadline under Rule 59(e). After the district court failed to rule on the motion for nearly seven months, the Vanderwerfs withdrew their motion and filed their notice of appeal on August 8, 2008. Any delay in this case was caused by the district court, not the Vanderwerfs.[ 6 ]

According to the majority, the filing of a Rule 59(e) motion did not toll the deadline to file a notice of appeal because the district court never ruled on the motion. (Majority Op. 9-10.) Thus, the Vanderwerfs had thirty days from the entry of summary judgment in favor of SKB to file their notice of appeal. Because they failed to do so, they did not file a timely notice of appeal.

Under the language of Rule 4, however, it is not a district court’s order disposing of a Rule 59(e) motion that triggers tolling. Instead, the thirty-day filing deadline does not even begin to run until the district court files an order: “If a party timely files in the district court [a motion to alter or amend the judgment under Rule 59(e)], the time to file an appeal runs for all parties from the entry of the order disposing of” the Rule 59(e) motion. Fed. R. App. P. 4(a)(4)(A)(iv). By the plain language of the rule, the timely filing of the motion to alter or amend triggers tolling. Because the district court did not rule on the motion to alter or amend the judgment, the thirty-day filing deadline has not begun to run.[ 7 ] It follows that the Vanderwerfs’ notice cannot be rejected as untimely.

My reasoning is in accord with pertinent authorities. My colleagues have not cited to any cases holding that a party’s withdrawal of a Rule 59(e) motion somehow nullifies tolling under Rule 4 such that the thirty-day deadline runs from the entry of the original judgment. Indeed, courts addressing similar issues have rejected the majority’s interpretation. In United States v. Rodriguez, 892 F.2d 233 (2d Cir. 1989), a party withdrew a Rule 59 motion, and the district court later ruled on the motion. Id. at 235-36. Although the Second Circuit declined to choose which date restarted the filing deadline, it rejected the argument that withdrawal of the motion prevented tolling of the thirty-day deadline. Id. at 236. Similarly, in Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439 (1986), the Ninth Circuit decided that a “Notice of Intent to Dismiss” did not nullify tolling that started when the party filed a Rule 59 motion. Id. at 1442. Instead, the thirty-day deadline began to run only when the district court issued an order disposing of the Rule 59 motion as withdrawn. Id.

SKB makes two equitable arguments in favor of its proposal that the Rule 4 filing deadline should not be tolled unless or until the district court issues an order on the motion that triggers tolling. First, it argues that it was unfairly forced to spend time and money briefing the Rule 59(e) motion, only for the Vanderwerfs to withdraw it unilaterally. Had the district court ruled on the motion and upheld its earlier decision, however, SKB would have expended exactly the same costs. Thus SKB’s costs arose because the Vanderwerfs filed a motion, not because they withdrew it. Second, SKB argues that the rule proposed in this dissent would allow abuse: A party could file a motion to alter or amend the judgment in order to extend its time to file a notice of appeal, and then withdraw the motion and file the notice. These actions would artificially extend the filing deadline, drive up the other party’s legal fees, and waste the district court’s time. Such a scheme would fail, however, if the district court ruled on the underlying motion in a timely fashion, as we expect district courts will do. In this case, there is no accusation that the Vanderwerfs acted in bad faith. A better rule would sanction only those parties who seek to abuse the system, rather than punishing innocent parties who simply want what they deserve: their day in court.

For the foregoing reasons, I dissent. I would entertain the present appeal, or remand this case to allow the district court an opportunity to rule on the Vanderwerf’s Rule 59(e) motion or enter an order approving withdrawal of the motion.