Johnson v. Smithkline Beecham Corp.
| Citation | 95 F.Supp.3d 819 |
| Decision Date | 01 April 2015 |
| Docket Number | Civ. No. 11–5782. |
| Parties | Glenda JOHNSON, et al., Plaintiffs, v. SMITHKLINE BEECHAM CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Ari Y. Brown, Hagens Berman Sobol Shapiro LLC, Ashley A. Bede, Barbara A. Mahoney, Shelby R. Smith, Tyler S. Weaver, Nick Styant–Browne, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Craig R. Spiegel, Hagens Berman LLP, Seattle, WA, Jeffrey L. Kodroff, John A. Macoretta, Mary Ann Geppert, Spector Roseman Kodroff & Willis, P.C., Philadelphia, PA, for Plaintiffs.
John Marshall, Lacombe, LA, pro se.
Terrie Bolton, Queen Creek, AZ, pro se.
Michael T. Scott, Stephen J. McConnell, Sandra Maria Di Iorio, Reed Smith LLP, Brennan J. Torregrossa, GlaxoSmithKline, Philadelphia, PA, Amor A. Esteban, Shook Hardy & Bacon LLP, Raymond A. Cardozo, Sonja S. Weissman, Reed Smith LLP, San Francisco, CA, Cindy K. Bennes, Lisa L. Smith, Martha M. Harris, Tamar P. Halpern, Thomas J. Sheehan, Thomas S. Wiswall, Phillips Lytle LLP, Buffalo, NY, Farah Tabibkhoei, Reed Smith LLP, Los Angeles, CA, Craig A. Knot, Sidley Austin LLP, Chicago, IL, Eric L. Alexander, Washington, DC, for Defendants.
In this products liability action, Debra Johnson alleges that over 50 years ago, thalidomide
—a morning sickness medication manufactured and distributed by Defendants—caused her to suffer severe birth defects. Because the governing one-year limitations period has long expired, I will grant summary judgment and dismiss Plaintiff's claims as time-barred.
Ms. Johnson is one of fifty-two Plaintiffs born in the late 1950s or early 1960s who have brought thalidomide
actions in this Court. I have recently set forth the lengthy history of this litigation. See Johnson v. Smithkline Beecham Corp., No. 11–5782, 2015 WL 1004308 (E.D.Pa. Mar. 9, 2015) ; Johnson v. SmithKline Beecham Corp., 55 F.Supp.3d 603 (E.D.Pa.2014). Briefly, Ms. Johnson initiated the instant action on September 24, 2012 in the Philadelphia Common Pleas Court against GlaxoSmithKline LLC, GlaxoSmithKline Holdings, Inc., and Grünenthal GmbH. (Case No. 12–5455, Doc. No. 1.) Plaintiff alleged negligence, negligent design, fraud, negligent misrepresentation, concert of action, and civil conspiracy against all Defendants, and negligent hiring and alter ego liability against Grünenthal only. (Id. )
Invoking diversity jurisdiction, Defendants removed to this Court, where the case was assigned to Judge Yohn. Plaintiff (a Louisiana citizen) moved to remand, arguing that because the GSK Defendants' “nerve center” was in Pennsylvania, they could not remove the case under the “forum-defendant” rule. (Doc. No. 20); see 28 U.S.C. § 1441(b) (); Hertz Corp. v. Friend, 559 U.S. 77, 93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) ().
On October 15, 2012, Judge Yohn placed the case in suspense pending the Third Circuit's review of my determination in a companion thalidomide
case that GSK's “nerve-center” was in Delaware. (Doc. No. 18.) After the Third Circuit upheld my ruling, Judge Yohn denied Plaintiff's remand motion. (Doc. No. 31); Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir.2013).
On August 26, 2013, Defendants moved to dismiss Plaintiff's claims as time-barred under Pennsylvania and Louisiana law. (Doc. No. 36.) On September 9, Plaintiff filed the instant, Amended Complaint, in which she proceeds against only the GSK Defendants, alleging negligence, fraud, and negligent misrepresentation. (Am. Compl., Doc. No. 41.) Accordingly, on September 17, Judge Yohn denied Defendants' dismissal motion as moot. (Doc. No. 43.)
On September 24, all thalidomide
cases filed in this Court (including the instant case) were consolidated before me for pretrial purposes. (Case No. 11–5782, Doc. No. 94.) Although the GSK Defendants did not move to dismiss the instant case, they did so in companion actions, arguing strenuously that because these Plaintiffs sustained their birth injuries half a century earlier, their claims were long time-barred. (Doc. Nos.74, 86.) I denied their Motions because I could not determine at the Rule 12 stage “the viability of Plaintiffs' equitable tolling arguments.” (Doc. No. 92 ¶ 4.)
The Parties have now completed discovery in all but a few cases. As I have discussed, when it became apparent that Counsel for all Plaintiffs, Hagens Berman Sobol Shapiro LLP, was obstructing discovery, on June 17, 2014, I appointed William T. Hangley as Special Master. Johnson, 55 F.Supp.3d at 607–09. On December 4, 2014, Mr. Hangley found that Hagens Berman's bad faith and dishonesty in prosecuting the claims of three thalidomide
Plaintiffs warranted the imposition of sanctions pursuant to 28 U.S.C. § 1927 and the Court's inherent authority. Johnson v. SmithKline Beecham Corp., No. 11–5782, 2014 WL 6851277 (E.D.Pa. Dec. 4, 2014) (Hangley, Special Master). On March 9, 2015, I overruled Hagens Berman's objections to Mr. Hangley's Report and Recommendation and agreed that sanctions should be imposed. Johnson, 2015 WL 1004308. Mr. Hangley is presently preparing a Report that will include his calculation of recommended sanctions.
The GSK Defendants filed the instant Motion for Summary Judgment on July 3, 2014. (Doc. No. 260.) Plaintiff responded, GSK replied, and Plaintiff submitted supplemental responses. (Doc. Nos.283, 315, 367, 376.)
On October 28, 2014, the GSK Defendants informed me that “[a]ll [P]laintiffs currently represented by Hagens Berman—with the sole exception of Debra Johnson—will dismiss with prejudice all claims against the GSK [D]efendants” (leaving their claims against the other Defendants in litigation). (Doc. No. 394.) In exchange, the GSK Defendants agreed to withdraw their discovery requests and not to seek sanctions against Hagens Berman. (Id. ) GSK and the firm formalized this agreement on November 14 in a joint Motion for Voluntary Dismissal. (Doc. No. 409.)
In light of my concerns as to whether these Plaintiffs had actually agreed to dismiss their claims against GSK (or whether Hagens Berman had prevailed upon them to agree so that the firm could avoid further sanctions), I ordered Mr. Hangley to determine “whether each of the twenty-eight Plaintiffs referenced in the November 14th Motion for Voluntary Dismissal knowingly, voluntarily, and intelligently consented to dismissing with prejudice his or her claims against the GSK Defendants—or any other Defendants.” (Doc. No. 420 (internal citations omitted).) Those matters are pending before Mr. Hangley.
With respect to Ms. Johnson, however, GSK's summary judgment motion “remains pending ... with both sides retaining all rights, including the right to appeal and the right to seek sanctions.” (Doc. No. 394.) Accordingly, I now consider the GSK Defendants' summary judgment motion and all related submissions. (Doc. Nos.260, 283, 315, 367, 376.)
I have resolved all disputed facts and made all reasonable inferences in Plaintiff's favor.
Plaintiff was born on February 23, 1959 on England Air Force Base in Alexandria, Louisiana. (Am. Compl. ¶ 16.) Her birth injuries are extensive and grievous. She has bilateral radial clubbed hands. (Id. ) She is missing her right thumb. (Stephens Decl. ¶ 7, Doc. No. 283.) Although she has a left thumb, “there [is] no bony attachment to the rest of her hand.” (Id. ) Because she has no radius in her right arm, her right forearm is four inches long. (Am. Compl. ¶ 16.) She has a shortened left radius. (Stephens Decl. ¶ 7.) She has worn braces to straighten her arms, and has had multiple surgeries, including 1966 procedures to remove an inguinal hernia
and to create “two thumbs out of her index fingers.” (Id.; Am. Compl. ¶ 16.) She also has a “scoliotic curvature of the spine and pectus excavatum of the anterior chest.” (Stephens Decl. ¶ 7.)
Although Plaintiff was “ashamed” of her birth defects, she never discussed her condition with her family, her friends, or any of her doctors. (Johnson Dep. at 66–71.) After overhearing her mother, Doris Williams, tell others that “this is how God made [Plaintiff],” “that became [Plaintiff's] answer to anyone” who would ask about her injuries. (Id. at 66.)
Since Plaintiff was a “young child,” Ms. Williams believed she knew what had caused her daughter's birth defects
. (Williams Dep. at 13–15, 19–24.) During her pregnancy, Ms. Williams's doctor prescribed her “experimental ... pills ... from Germany” to treat her morning sickness. (Id. at 22–24.) Because Ms. Williams had not taken these pills during her pregnancies with her three older children—who had no birth defects —she believed the “pills were responsible for [Plaintiff's] condition.” (Id. at 13–15.) Ms. Williams became even “more confident” that the pills caused Plaintiff's injuries after the doctor who performed Plaintiff's corrective surgeries in the 1960s told Ms. Williams some time before 1968 that other women who “had taken pills from Germany” gave birth to children with similar injuries. (Id. at 29–30.) Ms. Williams and her husband (who died in 1978) never investigated further and took no legal action because they “usually don't sue people.” (Id. at 20–21; Johnson Dep. at 34.)
On February 13, 2012, when Ms. Williams was eighty and Plaintiff was fifty-two, Ms. Williams first explained to Plaintiff what had caused her birth injuries. (Williams Dep. 11–12.) Plaintiff testified that she had not previously spoken with anyone about the cause of her injuries. (Johnson Dep. at 67–71.) After Ms. Williams told Plaintiff that she had taken a drug from Germany to treat her morning sickness, Ms. Williams apologized to Plaintiff, saying...
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