Forst v. Smithkline Beecham Corp.

• Decision Date: 11 March 2009
• Docket Number: Case No. 07-CV-612.
• Citation: 602 F.Supp.2d 960
• Parties: Gary A. FORST and Bonita A. Forst, Plaintiffs, v. SMITHKLINE BEECHAM CORPORATION d/b/a GlaxoSmithKline, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

602 F.Supp.2d 960

Gary A. FORST and Bonita A. Forst, Plaintiffs, v. SMITHKLINE BEECHAM CORPORATION d/b/a GlaxoSmithKline, Defendant.

Case No. 07-CV-612.

United States District Court, E.D. Wisconsin.

March 11, 2009.

COPYRIGHT MATERIAL OMITTED

Timothy J. Andringa, Cramer Multhauf & Hammes LLP, Waukesha, WI, Bijan Esfandiari, Frances M. Phares, Kate E. Gillespie, Nicole K.H. Maldonado, Baum Hedlund Aristei Goldman & Menzies PC, Los Angeles, CA, for Plaintiffs.

Andrew T. Bayman, Geoffrey M. Drake, King & Spalding LLP, Atlanta, GA, John T. Bode, Monica L. Walrath, Murn & Martin SC, Waukesha, WI, for Defendant.

ORDER

J.P. STADTMUELLER, District Judge.

Plaintiffs Gary and Bonita Forst ("the Forsts") filed a products liability and personal injury action against Defendant SmithKline Beecham Corporation d/b/a GlaxoSmithKline ("GSK") arising from Gary Forst's attempted suicide after using the prescription antidepressant Paxil CR®, manufactured by the defendant. The Forsts allege claims for negligence, negligent pharmaco-vigilance, strict liability, express warranty, implied warranty, fraud, negligent infliction of emotional distress, and loss of consortium. GSK now brings this motion for summary judgment on all claims. For the reasons set forth below, the court will deny the motion in its entirety. The court will also grant the Forsts' motion to stay all further proceedings. Finally, the court addresses additional motions regarding the confidentiality of supporting documents filed in connection with the motion for summary judgment.

BACKGROUND

Gary Forst ("Mr. Forst") began experiencing suicidal thoughts in 1995 and was subsequently diagnosed with Major Depressive Disorder. (Defendant's Proposed Findings of Fact ("D.'s PFOF") ¶¶ 1, 3, 4). Mr. Forst began taking a prescription antidepressant and was admitted to a hospital inpatient psychiatry unit. (D.'s PFOF ¶¶ 5, 8). During his hospitalization, Mr. Forst was seen by psychiatrist Dr. Paul Todd ("Dr. Todd") and placed on suicide precautions. (D.'s PFOF ¶ 9). Mr. Forst was discharged and placed on antidepressant medication. He continued taking prescription antidepressants for the next nine years. (D.'s PFOF ¶¶ 12-16).

In 2004, Mr. Forst suffered a relapse of Major Depression and was hospitalized twice due to his depression and suicidal thoughts. (D.'s PFOF ¶¶ 18-21). Following these hospitalizations, Dr. Todd switched Mr. Forst from his current prescription antidepressant to Paxil CR® ("Paxil"). (D.'s PFOF ¶ 24). Mr. Forst took Paxil for approximately two weeks before attempting suicide on March 17, 2004. In an attempt to kill himself, Mr. Forst first slashed his wrists with sheet metal, then drilled a chisel bit into his head. (D.'s PFOF ¶ 43).

Following his suicide attempt and discharge from the hospital, Mr. Forst met with his therapist, Peter Kenny, Ph.D. ("Dr. Kenny"). Mr. Forst informed Dr. Kenny that he attempted suicide because he was unhappy with the quality of work being done and sent to customers, and that he was not confident with new procedures at work that he found difficult to learn. (D.'s PFOF ¶ 46). Mr. Forst stopped taking Paxil and resumed taking Zoloft, a different prescription antidepressant, which he presently takes. Zoloft carries warnings regarding suicidality similar to those carried by Paxil. (D.'s PFOF ¶ 50).

Paxil is a prescription medication designed to selectively inhibit the reuptake of serotonin. (D.'s PFOF ¶ 25). It is part of a wider class of antidepressants referred to as selective serotonin reuptake inhibitors, or "SSRI's." At the time of Mr. Forst's suicide attempt in March 2004, Paxil's prescribing information for physicians contained the following warnings regarding suicidality:

"PRECAUTIONS: Suicide"

The possibility of a suicide attempt is inherent in major depressive disorder and may persist until significant remission occurs. Close supervision of high-risk patients should accompany initial drug therapy. Prescriptions for PAXIL CR should be written for the smallest quantity of tablets consistent with good patient management, in order to reduce the risk of overdose.

(D.'s PFOF ¶ 27). However, Paxil did not contain any specific warnings regarding an increased risk of suicidality caused by the drug itself.

In 2004, the FDA issued a Public Health Advisory regarding the need to closely monitor patients on antidepressants for a worsening of depression. This Public Health Advisory was issued shortly after Mr. Forst's suicide attempt, during his period of hospitalization. (D.'s PFOF ¶ 53). Sometime following the FDA's issuance of the Public Health Advisory, Bonita Forst ("Mrs. Forst") and her daughter each viewed a news story reporting on the advisory. (D.'s PFOF ¶ 57, Plaintiffs' Response to D.'s PFOF, ¶ 57). The Forsts' son, Jeffrey Forst, also received anecdotal information regarding Paxil's link to a worsening of depression from a co-worker. He advised Mrs. Forst to conduct internet research on the topic. (D.'s PFOF ¶¶ 59, 60).

Approximately three years later, the Forsts filed two lawsuits against GSK arising from Mr. Forst's suicide attempt. On March 13, 2007, the Forsts filed an action in the Court of Common Pleas of Philadelphia County, Pennsylvania. (D.'s PFOF ¶ 82). On April 20, 2007, the plaintiffs filed a second lawsuit against GSK in the Circuit Court for Milwaukee County, Wisconsin. Both the Pennsylvania and Wisconsin lawsuits alleged that Paxil was the cause of Mr. Forst's suicide attempt. (D.'s PFOF ¶ 83). GSK subsequently removed the Wisconsin state court action to this court on July 3, 2007. (D.'s PFOF ¶ 84).

STANDARD

Summary judgment is appropriate where the moving party establishes that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Material facts" are those facts which "might affect the outcome of the suit," and a dispute about a material fact is "genuine" if a reasonable finder of fact could find in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing summary judgment cannot simply rest on allegations or denials in its pleadings, but rather, it must also introduce affidavits or other evidence setting forth specific facts showing a genuine issue for trial. Anders v. Waste Mgmt. of Wis., 463 F.3d 670, 675 (7th Cir.2006). Finally, in conducting its review, the court views all facts and draws all reasonable inferences in favor of the nonmoving party. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir. 2006).

ANALYSIS

GSK first moves for summary judgment on all but one of the plaintiffs' claims, asserting that the claims are barred by the applicable statute of limitations. Alternatively, GSK argues that summary judgment is appropriate because the plaintiffs cannot establish a failure to warn by GSK; an element allegedly essential to all of the Forsts' claims. The court will address each argument in turn.

I. Statute of Limitations

A federal district court sitting in diversity must apply the forum state's substantive law, including statutes of limitations. Evans ex rel. Evans v. Lederle Laboratories, 167 F.3d 1106, 1111-12 (7th Cir.1999) (citing Guaranty Trust Co. v. York, 326 U.S. 99, 109-10, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)). Thus, the applicable Wisconsin statute of limitations applies to the plaintiffs' claims. Under Wisconsin statute § 893.54(1), a three-year statute of limitations applies to plaintiffs' claims for negligence, negligent "pharmaco-vigilance," strict liability, express warranty, implied warranty, negligent infliction of emotional distress, and loss of consortium. The plaintiff's single remaining claim for fraud is governed by a six-year statute of limitations. Wis. Stat. § 893.93(1)(b).

The applicable three-year statute of limitations for the plaintiffs' claims¹ begins to run at some point after Mr. Forst's March 17, 2004 suicide attempt. However, the parties dispute whether it began to run before or after April 20, 2004. The Forsts filed their Wisconsin action on April 20, 2007, approximately three years and one month after Mr. Forst's suicide attempt. Therefore, if the court determines that the Forsts' claims accrued prior to April 20, 2004, then the claims are time-barred.

Under Wisconsin law, a cause of action accrues when the plaintiff "discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant's conduct or product." Nierengarten v. Lutheran Social Servs., 219 Wis.2d 686, 580 N.W.2d 320, 324-25 (1998) (quoting Meracle v. Children's Service Society of Wis., 149 Wis.2d 19, 25-26, 437 N.W.2d 532, 534 (1989)). Whether the plaintiff exercised reasonable diligence is an objective test; the question is when the plaintiff should have known he had a claim against the defendant. Howard v. Philip Morris USA, Inc., 98 Fed.Appx. 535, 538 (7th Cir.2004) (citing Estate of Hegarty v. Beauchaine, 249 Wis.2d 142, 2001 WI App 300, 638 N.W.2d 355, 366 (Wis.Ct.App. 2001)). Reasonable diligence is defined as "such diligence as the great majority of persons would use in the same or similar circumstances." Schmidt v. Northern States Power Co., 2006 WI App 201, ¶ 13, 296 Wis.2d 813, 824, 724 N.W.2d 354, 359. Further, the issue of reasonable diligence is ordinarily one of fact. Spitler v. Dean, 148 Wis.2d 630, 638, 436 N.W.2d 308, 311 (1989) (citing Borello v. U.S. Oil Co., 130 Wis.2d 397, 404, 388 N.W.2d 140, 142-43 (1986)).

However, a plaintiff does not "discover" the cause of injury simply because he has an unsubstantiated, though correct, "hunch" about the source of the harm. A subjective lay person's guess or belief that "is not presently supportable" by objective medical information does not constitute knowledge that a...