PA Supreme Court declines to hear appeal in Phila. Paxil wrongful death case that ended with defense victory — (The Pennsylvania Record)

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The Pennsylvania Record

September 27, 2013 8:32 AM

By Jon Campi

The Pennsylvania Supreme Court recently declined to hear a final appeal in  a Paxil products liability case out of Philadelphia that ended with summary judgment granted to the defendant, drugmaker GlaxoSmithKline.

The state’s highest court denied a plaintiff’s petition for allowance of appeal on Sept. 18, judicial records show, meaning the trial court’s ruling in favor of the defense will stand.

Elizabeth S. Wilbourn, a mother from Oklahoma, filed a short-form complaint in the master Paxil Pregnancy litigation at Philadelphia’s Common Pleas Court back in the fall of 2007 over the death of her child, Alexis Kellum, who was less than a month old at the time.

Kellum, the complaint alleged, was born on June 4, 1999 with a congenital cardiac defect.   She underwent surgery about three weeks later but ended up dying the morning after the operation, the record shows.

Wilbourn, a registered nurse, had taken the drug Paxil to curb her depression for a short time, but claimed that she ceased taking the medication about a month after conceiving Kellum, court records show.

The child’s pediatric cardiologist had testified that Kellum’s injuries were likely caused by something the mother was “exposed to” during pregnancy, although the doctor subsequently said that he wasn’t certain that a specific drug ingested during pregnancy would lead to the heart defect Kellum was ultimately diagnosed as having.

Welbourn never asked the doctor whether Paxil could have caused the birth defect in her child, and the plaintiff never consulted a Physicians Desk Reference about the matter, despite the fact that she worked as a professional nurse, the record shows.

Welbourn also never contacted anyone representing GlaxoSmithKline and she didn’t contact a private attorney regarding her potential claims until she saw a legal advertisement in 2007, according to the court record in the case.

In her mass tort complaint, Welbourn alleged that Paxil caused her daughter’s injuries, and ultimately led to the girl’s untimely death.

Following oral arguments, a Philadelphia judge granted summary judgment to GlaxoSmithKline in October 2011.   The trial judge subsequently denied the plaintiff’s petition for reconsideration of the decision, according to the record.

Attorneys for GlaxoSmithKline argued that the suit was time barred because it was filed long after the two-year statute of limitations for tort actions. Welbourn’s lawyers had argued that the doctrine of fraudulent concealment tolled the statute of limitations.

The trial court ultimately disagreed.

In a December 2011 opinion urging the case to be upheld on appeal, Philadelphia Common Pleas Court Judge Sandra Mazer Moss wrote that Welbourn never alleged any concealment beyond those encompassing her general failure to warn claim.

“General systematic public conduct is not an affirmative act directed at this specific Plaintiff,” Mazer Moss wrote at the time. “There was no alleged independent concealment upon which Elizabeth relied preventing her from investigating the cause of her daughter’s death. Plaintiff must use all reasonable diligence to obtain the facts and circumstances upon which recovery might be based.”

Mazer Moss ended up concluding that the doctrine of fraudulent concealment didn’t toll the statute of limitations in the Welbourn case.

The court docket shows that attorney Rosemary Pinto, who represented the plaintiff, appealed the trial court’s decision to Pennsylvania Superior Court on Oct. 7, 2011.

Mazer Moss denied the plaintiff’s motion for reconsideration four days later, and a Superior Court panel ultimately affirmed the lower court’s decision.

Pinto filed a petition for allowance of appeal to the Pennsylvania Supreme Court on Sept. 20 of last year, the record shows.

The high court’s denial order, which was a mere paragraph long, doesn’t contain an explanation on why the justices declined to hear final appeal arguments in the case.