Todd Davis ~ remember the name. Davis is an attorney who has represented GlaxoSmithKline on numerous occasions. He is employed by King & Spalding.
On with the story...
Elisabeth Balzer took Paxil while pregnant. Her son, Braden, was born with tetralogy of fallot (a combination of four heart defects). A cardiologist expert witness, Dr. Ra-id Abdulla, testified that a review of Braden Rader’s and his mother’s medical records showed that Braden’s heart defects was related to exposure to Paxil during his mother’s pregnancy. Abdulla also pointed out (under cross-examination) that the American Heart Association has already “assessed, documented, and judged” the existence of a causal link between Paxil and heart defects.
Braden has already been through two heart surgeries, one several months after his birth and the second just last year.
A few days later it was the turn of Braden's mother, Elisabeth, to take the stand. Elizabeth began speaking of her emotional response to Braden undergoing open-heart surgery as an infant. Immediately Glaxo's counsel objected, moreover, Todd Davis argued that Balzer did not have valid claims for any pain, suffering or emotional distress she may have had as a result of her son’s injury.
Using Mississippi state law, Davis said, “She didn’t know that the injury happened to Braden. It occurred during the first trimester. There’s no way she could have any physical impact from an injury that she didn’t know had occurred.”
Balzer’s lawyer, James Morris Jr, of Morris Law Firm, responded by saying, “What could be more shocking or upsetting to a woman than to be advised that your baby has a birth defect? To talk about her as if she was a bystander is ridiculous. This child was inside her when the defect occurred. It was delivered, her own child, with the defect. I’m shocked that that type of argument would even be made. If the appellate courts and the Supreme Court want to go with Mr. Davis’s theory then I really regret where this country is headed.”
Judge Kenneth Powell, who was presiding over matters, sided with GSK's counsel. Powell said, "I will not permit the plaintiff to testify about physical injury or physical manifestations or anything that denotes pain and suffering” in front of the jury."
A week or so later Balzer had her case against GSK dismissed in yet, it has to be said, more bizarre circumstances/ reasons given by Judge Kenneth Powell. Judge Powell found that Dr. Robert Kiehn’s (Elizabeth's prescribing physician) testimony did not include an important detail: that he would have refrained from prescribing Paxil to the pregnant Mrs. Balzer had he been given more adequate warnings of the possible risks.
However, another of Balzer’s lawyers, Adam Peavy of Bailey Peavy Bailey Cowan Heckaman PLLC, disagreed, he said, “To suggest that the question was never asked is not accurate. It was asked multiple times about what he would’ve done with a different warning, or if he was warned about Paxil causing birth defects. Your honor excluded that evidence.”
So, to recap.
Elizabeth Balzer's prescribing physician was asked numerous times during deposition whether or not he would have prescribed Paxil to her had a warning of birth defects being caused by Paxil would have, at the time, been available to him.
Judge Powell excluded this part of the testimony.
Powell then rules in favour of GSK by claiming that there was no evidence to show that Balzer's treating physician would have prescribed her Paxil had he have known about the Paxil birth defect link ~ of course there wasn't any evidence, the Judge himself had, previously in the trial, excluded it from being heard!
Adam Peavy of Bailey Peavy Bailey Cowan Heckaman in Houston, who represented Rader, said he plans to appeal.
This isn't the first time Davis has made claims that people under deposition or on the stand couldn't have "possibly known." In 2007 Davis also tried to use the "Couldn't have known" argument, this time, however, he was protecting Sally K. Laden, a ghostwriter for GSK. Once again, the drug in question was Paxil. (Back story)
Hats off to Todd Davis of King & Spalding. He really earned his corn on this one ~ he used the Mississippi law to Glaxo's advantage.
Hats off too to whatever religious belief Davis follows. It must be wonderful to have a doctrine whereby mothers aren't permitted to show any form of emotion when discussing their child's birth defects. Who knows, maybe Davis is an atheist?
I take it that a Bible was sworn on at some point during these proceedings? I'd just like to know where in the Bible it states that "Thou shalt not show emotions if they are female."
Kudos too to Judge Kenneth Powell who should be awarded with the 'Short-Term Memory of the Year Award.'
The Legal Inteligencer
Ryan, Glaxo's Non-Viable Fetus - Part I
Ryan, Glaxo's Non-Viable Fetus - Part II - The Twists