M.M. ex rel. Meyers v. GlaxoSmithKline LLC

• Decision Date: 26 August 2016
• Docket Number: No. 1–15–1909.,1–15–1909.
• Citation: 406 Ill.Dec. 758,61 N.E.3d 1026
• Parties: M.M., a Minor, by and through Audrey MEYERS, her Mother and Next Friend; A.H., a Minor, by and through Dawn Hinton, her Mother and Next Friend; P.M., a Minor, by and through Linda Butler, his Mother and Next Friend; H.C., a Minor, by and through Amy Christy, her Mother and Next Friend; H.H., a Minor, by and through Kristen Hozempa, his Mother and Next Friend; A.K., a Minor, by and through Kathryn Keady, his Mother and Next Friend; C.S., a Minor, by and through Stacey Schutte, Her Mother and Next Friend; and C.E., a Minor, by and Through Shannon Emery, His Mother and Next Friend, Plaintiffs–Appellees, v. GLAXOSMITHKLINE LLC, f/k/a SmithKlineBeecham Corporation, d/b/a SmithKlineBeecham; Wolters Kluwer Health, Inc.; Wolters Kluwer United States, Inc.; and Walgreens Company, Defendants. (GlaxoSmithKline LLC, f/k/a SmithKlineBeecham Corporation, d/b/a SmithKlineBeecham, Defendant–Appellant).
• Court: United States Appellate Court of Illinois

61 N.E.3d 1026
406 Ill.Dec. 758

M.M., a Minor, by and through Audrey MEYERS, her Mother and Next Friend; A.H., a Minor, by and through Dawn Hinton, her Mother and Next Friend; P.M., a Minor, by and through Linda Butler, his Mother and Next Friend; H.C., a Minor, by and through Amy Christy, her Mother and Next Friend; H.H., a Minor, by and through Kristen Hozempa, his Mother and Next Friend; A.K., a Minor, by and through Kathryn Keady, his Mother and Next Friend; C.S., a Minor, by and through Stacey Schutte, Her Mother and Next Friend; and C.E., a Minor, by and Through Shannon Emery, His Mother and Next Friend, Plaintiffs–Appellees,
v.
GLAXOSMITHKLINE LLC, f/k/a SmithKlineBeecham Corporation, d/b/a SmithKlineBeecham; Wolters Kluwer Health, Inc.; Wolters Kluwer United States, Inc.; and Walgreens Company, Defendants. (GlaxoSmithKline LLC, f/k/a SmithKlineBeecham Corporation, d/b/a SmithKlineBeecham, Defendant–Appellant).

No. 1–15–1909.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 26, 2016.

61 N.E.3d 1029

Alan S. Gilbert, Tiffan L. Amlot, and Anders C. Wick, all of Dentons US LLP, of Chicago, for appellant.

Kenneth J. Brennan and Steven D. Davis, both of TorHoerman Law LLC, of Edwardsville, for appellees.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

406 Ill.Dec. 761

¶ 1 In this lawsuit, eight minor plaintiffs from six states, including Illinois, filed a products liability suit in the circuit court of Cook County against defendant GlaxoSmithKline LLC (GSK), a pharmaceutical company, and others. The suit alleges that the minor plaintiffs suffered catastrophic birth defects as a result of their mothers' ingestion of defendant GSK's psychiatric drug, Paxil. Defendant GSK moved to dismiss the claims of the out-of-state plaintiffs due to lack of personal jurisdiction, arguing that the court lacked both general and specific jurisdiction.

61 N.E.3d 1030

406 Ill.Dec. 762

¶ 2 However, the trial court found that Illinois had specific personal jurisdiction over defendant GSK based on (1) defendant GSK's substantial in-state contacts, namely its contracts with 17 Illinois physicians to run 18 to 21 clinical trials on Paxil in Illinois as part of a multicenter study and (2) the fact that plaintiffs' claims arose from defendant GSK's acts or omissions related to those trials. On this permissive interlocutory appeal, pursuant to Illinois Supreme Court Rule 306(a)(3), defendant GSK argues that the trial court erred in denying its motion to dismiss the out-of-state plaintiffs' claims due to lack of personal jurisdiction. Ill. S.Ct. R. 306(a)(3) (eff. July 1, 2014) (“[a] party may petition for leave to appeal * * * from an order of the circuit court denying a motion to dismiss on the grounds that defendant has done nothing which would subject defendant to the jurisdiction of the Illinois courts”). For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 I. Parties

¶ 5 The 16 plaintiffs in this case are eight minor plaintiffs and their mothers. In the discussion below, we refer to a minor plaintiff and his or her mother as a “mother-child pair.” Two pairs are residents of Illinois, two pairs are residents of Florida, and the four remaining pairs reside in Colorado, Virginia, Michigan, and Wisconsin, respectively.

¶ 6 Defendant GSK is a limited liability company incorporated in Delaware, and its sole member, GSK Holdings Inc., is a Delaware corporation with its principal place of business in Delaware. Defendant GSK also has corporate and administrative headquarters in Pennsylvania and North Carolina.

¶ 7 II. Complaint

¶ 8 On July 2, 2014, plaintiffs filed a complaint that names the following as defendants: (1) GSK (f/k/a SmithKlineBeecham Corporation, d/b/a SmithKlineBeecham), the pharmaceutical company that designed, tested, manufactured, and sold the drug Paxil; (2) Wolters Kluwer Health, Inc. (WKH), and Wolters Kluwer United States, Inc. (WKUS), the companies that provided drug information about Paxil to pharmacies; and (3) Walgreen Co. (Walgreens), the company that sold Paxil to some of the plaintiffs. Only GSK brings this appeal. Against defendant GSK, plaintiffs' complaint sets forth six counts: (1) strict liability and failure to warn, (2) strict products liability and design defect, (3) negligence, (4) breach of implied warranty, (5) breach of express warranty, and (6) negligent misrepresentation and concealment.

¶ 9 Plaintiffs claim that the mothers' ingestion of Paxil —a branded paroxetine prescription drug that treats depression, obsessive compulsive disorder, and anxiety—caused catastrophic congenital birth defects, including heart abnormalities. Plaintiffs allege that the design of Paxil, its inadequate warnings, and the manner in which its risks were communicated to the mothers, rendered the drug defective. Moreover, plaintiffs allege that “[d]efendants failed in their acts and omissions related to [Paxil ] to use reasonable care to avoid injuring Plaintiffs” and “breached implied and express warranties accompanying [its] sale * * * to each mother Plaintiff.” Plaintiffs allege that, collectively, the “defective nature of [Paxil ] and Defendants' negligent conduct and breach of implied and express warranties proximately caused the minor Plaintiffs to develop birth defects ” in the form of severe and permanent structural and functional abnormalities.

61 N.E.3d 1031

406 Ill.Dec. 763

¶ 10 Plaintiffs allege that, at the time that each mother was prescribed Paxil, defendant GSK knew that there was a “significantly increased risk of congenital defects in babies whose mothers ingested” the drug. Such knowledge was “scientifically knowable through appropriate research and testing.” Plaintiffs allege that the Food and Drug Administration (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.

¶ 11 Plaintiffs also argue (1) that defendant GSK “failed to conduct appropriate tests to generate the necessary scientific data regarding the strength of the association between [Paxil ] and birth defects ”; (2) that defendant GSK “represented that Paxil was safe” when it knew or should have known of Paxil's dangerous impact on in utero development because such results were “scientifically knowable” through appropriate research; (3) that defendant GSK neglected to conduct adequate preclinical, clinical, and postmarketing surveillance to determine whether Paxil was safe for its intended or foreseeable uses; and (4) that defendant GSK “intentionally conceal[ed],” “failed to disclose,” and “negligently manipulated” clinical data that demonstrated Paxil's risks of birth defects. The complaint alleges that, as a direct result of defendant GSK's acts and omissions, plaintiffs sustained severe and permanent disfigurement, pain, suffering, and disability.

¶ 12 III. Motion to Dismiss

¶ 13 On August 7, 2014, defendant GSK moved to dismiss the out-of-state plaintiffs' claims due to a lack of personal jurisdiction, both general and specific, under sections 2–301 and 2–619 of the Code of Civil Procedure. 735 ILCS 5/2–301, 2–619 (West 2012). First, defendant GSK argued that it was not subject to general jurisdiction because Illinois is neither the state of its incorporation nor its principal place of business. Defendant GSK argued that it was not rendered “at home” in Illinois by its business activities here, under the United States Supreme Court's recent decision in Daimler AG v. Bauman, 571 U.S. ––––, ––––, 134 S.Ct. 746, 749, 187 L.Ed.2d 624 (2014).

¶ 14 Second, defendant GSK argued that Illinois lacks specific jurisdiction¹ because the out-of-state plaintiffs' claims did not arise from its Illinois activities. Moreover, defendant GSK claimed that its actions or omissions in Illinois were not the “but for” cause of the alleged harm: plaintiffs did not serve as study subjects in Illinois, did not receive Paxil prescriptions in Illinois, did not ingest Paxil in Illinois, and did not suffer injury from Paxil in Illinois. Finally, defendant GSK argued that the out-of-state plaintiffs may not create personal

406 Ill.Dec. 764

61 N.E.3d 1032

jurisdiction by tacking their claims onto those of the two Illinois plaintiffs.

¶ 15 IV. Discovery

¶ 16 In the responses to plaintiffs'...