GlaxoSmithKline, the maker of antidepressant Paxil that causes profound birth defects, according to plaintiffs, asked the US Supreme Court to release it from the jurisdiction of an Illinois trial court because the mothers and children are from out-of-state.
The case is GlaxoSmithKline LLC v. MM. Ex Rel Meyers, et al, Petition No. 16-1171. The Appellate Court of Illinois First District, Fifth Division, ruled the trial court had “specific personal jurisdiction” over the global company because the plaintiff’s claims “arise out of or relate to” Glaxo’s activities in Illinois. See 61 NE3d 1026 (Aug. 26, 2016).
Six pairs of mothers and children from Florida, Colorado, Virginia, Michigan, Illinois and Wisconson, sued the giant pharma company in the Circuit Court of Cook County, IL. Each claims the GSK failed to warn about Paxil’s dangers if used during pregnancy, that Paxil was defectively designed, the GSK was negligent, breached warranties and negligently misrepresented and concealed the risks of Paxil.
GSK, of course, wants a very strict threshold for exercising jurisdiction — that the defendant’s activities in the forum state directly caused the plaintiff’s injury. In another case before the Supreme Court, Bristol-Myers Squibb is making a similar argument in an effort to escape jurisdiction of California state courts. See US Supreme Court to Rule on California State Jurisdiction Over Plavix Litigation.
Creating a conflict
GSK has many connections to Illinois:
- It employs 16,232 people in the US, 217 of whom reside in Illinois.
- It has an agent for service of process in Illinois.
- Between 2000 and 2006, GSK had anywhere between 79 and 121 employees marketing specifically Paxil in Illinois.
- GSK does business in and derives substantial revenue from Cook County, Illinois.
- The company conducted clinical trials of Paxil in Illinois.
GSK argues that some of the plaintiffs saw their doctors and ingested Paxil outside of Illinois, and that the company is incorporated in Delaware with corporate headquarters in Pennsylvania and North Carolina. This, according to Glaxo, creates an “intolerable” conflict in the courts that the Supreme Court must resolve:
- Six courts adhere to a proximate causation standard.
- Five courts (including Illinois) have adopted a but-for causation standard.
- Four other courts apply “an even looser standard that does not require any showing of causation.
Glaxo’s lawyers argue that a proximate causal link is required to exercise jurisdiction or else “a large company with nationwide operations is subject to jurisdiction on essentially any claim in essentially any state.” It calls this approach “universal general jurisdiction,” which it wants the high court to reject.
Catastrophic birth defects
The plaintiffs allege that there was a “significantly increased risk of congenital defects in babies whose mothers ingested” the drug. This knowledge was “scientifically knowable through appropriate research and testing.” Plaintiffs allege that the FDA requires defendant GSK “to issue stronger warnings whenever there existed reasonable evidence of an association between a serious risk and [Paxil].”
Despite defendant GSK’s opportunity and duty to strengthen the drug’s warnings, it “touted [Paxil] as being safe for pregnant women” and “aggressively *** promoted” the drug with labels that inadequately cautioned patients of the associated risk factors, thus, misrepresenting the drug to the public and to the medical profession.
The complaint alleges that, had defendant GSK apprised plaintiffs’ physicians of Paxil’s risks, they would not have “prescribed or permitted” plaintiffs to use the drug. Likewise, had defendant GSK provided timely and “adequate warnings regarding the risks” of Paxil, plaintiffs would not have ingested the drug.