Baum Hedlund PAXIL (seroxat) - Too late to file death claims - Pennsylvania appeals court

Pennsylvania appeals court: Too late to file death claims


Monday, June 20, 2011

By Amaris Elliott-Engel, The Legal Intelligencer

When Maryland plaintiffs agreed with drugmaker GlaxoSmithKline to suspend the statute of limitations in their cases, the accord didn't extend the time to begin lawsuits in Pennsylvania, the state Superior Court ruled in an unpublished opinion in May.



The plaintiffs in Collins v. SmithKline Beecham Corp. argued that the agreement, struck on Jan. 10, 2005 with GlaxoSmithKline, applied both to Pennsylvania's two-year statute of limitations and Maryland's three-year statute, the opinion said.



While litigants may contract to modify an applicable statue of limitations, "a plain reading" of the agreement struck between the plaintiffs' counsel and GSK's counsel shows GSK agreed to suspend only the Maryland statue of limitations, not the Pennsylvania's, the panel said.



The case was heard by a three-judge panel comprising Judges Susan Peikes Gantman, Anne E. Lazarus and former Senior Superior Court Judge Stephen J. McEwen Jr. However, Judge McEwen did not participate in the decision.



Bobby R. Collins committed suicide in 2002, a month after starting to take Paxil, a selective serotonin reuptake inhibitor, the opinion said. Kristin S. Collins, Mr. Collins' widow, and Dwayne R. Collins sued SmithKline Beecham Corp., doing business as GlaxoSmithKline, for wrongful death and survival claims.



The agreement mentions that the statute of limitations for wrongful death actions in Maryland is three years and would have expired Feb. 14, 2005, the opinion said. But the panel observed that the agreement did not mention Pennsylvania's statute of limitations and that Pennsylvania's statute of limitations already had expired by the time the plaintiffs filed their complaint Feb. 9, 2007.



The "Pennsylvania statute of limitations had previously barred appellants' wrongful death/survival claim," the opinion said. "Nothing in the parties' exchange indicates GSK explicitly agreed to waive all possible statute of limitations, particularly those limitations periods, which had already expired."



Philadelphia Common Pleas Judge Allan L. Tereshko entered summary judgment against the plaintiffs in October 2008, the opinion said.



Plaintiffs' attorney Bijan Esfandiari, of Baum Hedlund Aristei & Goldman in Los Angeles, said that in a petition to the state Supreme Court, his firm would focus on the fraudulent concealment issue, alleging the statute of limitations did not apply because GSK fraudulently concealed correlation between suicide and use of Paxil.



GSK's Philadelphia counsel Joseph E. O'Neil, of Lavin O'Neil Ricci Cedrone & DiSipio, said in an email: "The Superior Court determined that plaintiffs 'could show no affirmative act of concealment upon which decedent's wife justifiably relied to delay pursuing a claim against GSK' to somehow allow their time-barred claims to proceed."



Amaris Elliott-Engel: aelliott-engel@alm.com. See www.thelegalintelligencer.com.









Read more: http://www.post-gazette.com/pg/11171/1154439-499.stm#ixzz1Pnqxmwgx