Paxil litigators wrangle for position in competing class actions
It was a busy day for lawyers in the Paxil litigation in Madison County on Tuesday as a routine hearing to enforce an injunction branched into three separate, contentious hearings with two judges.The settlement amount was inadequate;
GlaxoSmithKline (GSK) filed a motion asking Madison County Associate Circuit Judge Ralph Mendelsohn to enforce an injunction which would prohibit plaintiffs in a similar St. Clair County Paxil class action suit from holding a certification hearing on Dec. 28.
But before Mendelsohn would issue a ruling he referred the case to Circuit Judge Barbara Crowder to hear a motion that sought to have him removed for cause.
In October the pharmaceutical agreed to allocate $63,833,148 and any obligations it may otherwise have to settle a class action case brought by attorney Stephen Tillery.
Tillery stands to reel in a whopping $16.8 million award in attorneys' fees.
The plaintiffs, Teri Hoormann, Mary Kopsie, and Bonita and Mark Helfer, alleged they suffered actual economic damages because GlaxoSmithKline promoted Paxil and Paxil CR for prescription to patients under the age of 18, while concealing negative information.
The preliminary settlement was approved Oct. 6 by Mendelsohn, the first day he was assigned to the case. The order was originally filed under seal, but was unsealed Oct. 27.
When issuing his order, Mendelsohn concluded that competing class actions would jeopardize his ability to rule on the settlement and would substantially increase the cost of litigation.
He further concluded competing class actions would also create risk of conflicting results, would waste court resources, and could prevent plaintiffs and the class members from benefiting from any negotiated settlement.
After Mendelsohn issued his preliminary settlement order, GSK entered motions to stay four other class actions pending throughout the country, including the St. Clair County case.
That's when the problems started.
Attorneys Chris Cueto of Belleville and John Driscoll of St. Louis, who represent Donita Baldwin -- a plaintiff in St. Clair County -- sent out a notice on Nov. 28 that they intended to hold the class certification hearing before St. Clair County Circuit Judge Michael O'Malley on Dec. 28.
According to GSK that violated Mendelsohn's injunction.
Cueto and Driscoll opposed GSK's motion and called Mendelsohn's injunction 'grandiose and absurd."
They argued to O'Malley that GSK's attempt to stay is among its latest attempt to further a course of action to deceive O'Malley, the public, and the putative class members so GSK can "enshroud their secret maneuverings and collusion with select claimants."
Cueto also argued that GSK failed to inform O'Malley that former Madison County Circuit Judge Phillip Kardis, who originally heard the case, placed it under seal on May 26, 2005, and removed it from the public view.
"In fact, beyond GSK there are only three people in the world that would have been granted access to the contents of the case file," Cueto argued.
"Yes, believe it or not, GSK had every single page of every single court filing in Madison County sealed and removed from the public," Cueto wrote.
Cueto said if O'Malley stayed the case, he would be complicit in secret maneuvering that GSK and Tillery are crafting.
He also said that Mendelsohn's claim in the preliminary settlement that he has "exclusive jurisdiction" is absurd.
"That is a powerful Circuit Court," Cueto wrote.
Cueto said there is no instance in which an Illinois Circuit Court ever had exclusive jurisdiction over anything.
Cueto also argued that GSK entered orders on two occasions that continued class cetification hearings.
He said that while it was by the agreement of both parties, it was only achieved due to GSK's deception.
"In discussing their desire to continue, GSK represented that they needed more time to conduct discovery on class issues," Cueto wrote. "It is now apparent that GSK was simply stalling my client and delaying this court while crafting a secret deal in Madison County."
O'Malley denied GSK's motion to stay on Nov. 20, but acknowledged that the plaintiffs and their counsel are subject to Mendelsohn's injunction and need to go to Madison County to take care of it before he can proceed.
Cueto and Driscoll then filed a motion to intervene, and followed that with a motion to remove Mendelsohn for cause and a motion to remove Mendelsohn as a matter of right.
They wanted to intervene claiming:
There was apparent existence of a reverse action conducted by Tillery and counsel for GSK;
There was an attempt by the attorneys for the parties to enjoin and parallel proceeding while simultaneously representing the Hoormann case as an "opt-out" class action;
There is strong evidence of collusion by the parties to the detriment of the class;
The nature of the fees sought by Tillery should be questioned;
There is an insufficient and inadequate notice plan as mentioned in the preliminary order approving the settlement; and
There was inappropriate wholesale sealing of the Hoorman case from public view.
Mendelsohn would not hear any arguments on any motion until the substitution for cause was resolved.
Crowder held an emergency hearing and after hearing arguments ruled that Cueto and Driscoll did not meet the requirements to have Mendelsohn removed for cause.
Cueto argued Mendelsohn's injunction order was ex-parte and therefore was already biased against his client since he already ruled against her.
Crowder disagreed and said that an attorney cannot seek to remove a judge for cause just because he disagrees with the judge's ruling.
She then referred the case back to Mendelsohn for the hearing on motion to enforce the injunction and the motion for a substitution as a matter of right.
Mendelsohn ruled that he has already made a major ruling in the case and quickly denied the motion for substitution.
Dwight Davis of Georgia, who represents GSK, told Mendelsohn that he cannot allow Cueto and Driscoll to simply ignore his valid injunction.
"Rather than comply with this court's injunction, the plaintiffs are blatantly flouting it," Davis said.
Davis said Cueto's clients are members of the Hoormann settlement class, as are the absent class members they purport to represent. He said they cannot be prejudiced by the injunction since they can gain relief from the Hoormann class and pointed out the attempt to move forward in the St. Clair County case presents the very difficulties Mendelsohn intended to prevent.
"They are trying to undermine the settlement judge," Davis said. "I ask that everyday they continue to do so they be assessed a fine of $10,000 per day that would go to members of the class."
Mendelsohn ruled that Cueto did in fact violate the injunction but would not issue any fines. He indicated he would revisit any violations of the injunction should it be necessary.