Imagine the scenario, if you will.
You're in court because you lost your leg in a coach accident. The coach company are defending allegations that they are responsible. Evidence surfaces that the coach you were travelling on had faulty brakes, moreover, the driver of the coach didn't know about the faulty brakes but the coach company did.
Testimony is taken from the driver prior to the trial. He states that if he had known about the faulty brakes on the coach he would not have driven it.
On the day of the trial your legal team wish to present the testimony of the driver. The defence team object and the Judge sides with them.
Days later, as the trial nears completion, the Judge announces that you cannot proceed with your claim against the company because you have no proof that the driver would have taken the bus out that day if he had been warned that it had faulty brakes.
You, your legal team, and all those present in court are stunned into silence at the Judges' rationale because you do have the proof but he won't allow you to present it.
You following?
If the above scenario seems absurd then welcome to the world of Philadelphia.
Back in April Judge Kenneth Powell halted not one but nine Paxil birth defect cases. The lead case in question involved Braden Rader, who was born with tetralogy of fallot (a combination of several congenital heart defects) that his mother claimed was caused by the use of Paxil during the early stages of her pregnancy in 2003. (Rader et al. v. SmithKlineBeecham Corp. et al.)
Powell ruled that the prescribing physician, Robert Kiehn, had not testified that he would have altered his decision to prescribe Paxil to Rader’s mother, plaintiff Elisabeth Balser, if he had of known about its link to birth defects.
However, Kiehn had already testified in a videotaped deposition that he would not have prescribed Paxil if he had known about the birth defect links but Judge Powell had previously prevented this testimony from being played to the jury.
Obviously, his decision to halt the trial is being appealed and, at present, this trial and 9 others is on "stay" - basically put on hold until a decision is made on the appeal.
GSK's attorneys, as one would expect, have requested to lift the stay, in other words, they have tried to get all of them thrown out by the Judge before a result of the appeal.
In this instance we have a different Judge making the decision. Philadelphia County Court of Common Pleas Judge Arnold New has denied Glaxo's bids to lift a stay on litigation.
The state of Philadelphia is no stranger to cases of Paxil birth defects.
Back in 2014 I wrote about one such case regarding Pennsylvanian mother, Joanne Thomas. (Links at foot of this post) Her case was tossed by the Judge because, according to Glaxo's lawyers, she was too late in filing. In any event, Glaxo argued, her fetus was non-viable (Non viable means not capable of living, growing, or developing and functioning successfully. It is antithesis of viable, which is defined as having attained such form and development of organs as to be normally capable of living outside the uterus.)
Thomas lost her case then, later, lost the appeal. However, all was not lost. Thomas approached me and after many hours, days weeks and months, I contacted her attorneys with evidence to present to the Judge who had denied her appeal.
You see Glaxo's attorneys should have provided Thomas' attorneys with discovery - that discovery would have shown that Glaxo had already admitted (via internal emails) that Thomas' use of Paxil during her pregnancy was probably the cause of her having to abort her fetus due to it developing a whole heap of birth defects.
Thomas eventually made an out of court settlement with GSK and was told by her own attorneys to have no more contact with me. Shucks, hand them a winnable case on a plate and that's the thanks I get!
It's since been suggested that I should have billed the attorneys for the months of hard slog I put in (for free) - Ah well, you live and learn.
In the case of Braden Rader, I guess we'll just have to wait and see how the appeal goes.
(Source) - GlaxoSmithKline Denied Bid To Unpause Philly Paxil Litigation
Bob Fiddaman.
Related
Ryan, Glaxo's Non-Viable Fetus - Part I
Ryan, Glaxo's Non-Viable Fetus - Part II - The Twists
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