Battle of the plaintiffs' attorneys heating up on Paxil turf

By Steve Gonzalez | Dec 14, 2006

Stephen Tillery

John Driscoll

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.

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 of 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 order was originally filed under seal, but was unsealed Oct. 27.

Paxil is approved for the treatment of depression, generalized anxiety disorder, social anxiety disorder, panic disorder, obsessive compulsive disorder and post-traumatic stress disorder in adults.

The settlement agreement states that all people in the United States who purchased Paxil for their minor children are eligible to join the class.

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.

"The Court finds that the prosecution of other actions concerning the claims released by this settlement would result in fraud, gross wrong, or oppression and equity requires such actions be enjoined to prevent manifest wrong and injustice," Mendelsohn wrote when issuing the injunction.

"The Court also finds that simultaneous proceedings in other forums relating to the claims in the action would significantly impede the conduct of this litigation."

GSK, represented by Russell Scott of Swansea, contends plaintiffs in the St. Clair County case, which was filed later and is an uncertified class action consisting of only Illinois residents, refuse to abide by Mendelsohn's injunction.

According to court records, attorneys for the St. Clair County plaintiffs sent out a notice on Nov. 28 that they intend to hold the class certification hearing before Circuit Judge Michael O'Malley on Dec. 28.

After Mendelsohn issued the injunction, GSK asked O'Malley to stay the case, but plaintiff attorneys' John Driscoll and Chris Cueto opposed the motion and called Mendelsohn's injunction 'grandiose and absurd."

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.

GSK wrote in its motion to stay, "This court cannot allow the plaintiffs and their counsel to simply ignore this valid injunction."

"Rather than comply with this court's injunction, the plaintiffs are blatantly flouting it."

GSK contends the members of the proposed St. Clair County class are members of the Hoormann settlement class, as are the absent class members they purport to represent so they cannot be prejudiced by the injunction since they can gain relief from the Hoormann class.

GSK claims the attempt to move forward in the St. Clair County case presents the very difficulties Mendelsohn intended to prevent.

GSK wrote, "Having validly issued the injunction, this court has the inherent authority to enforce it."

GSK contends the St. Clair County plaintiffs and their counsel are trying to "undermine the Hoormann settlement."

It also contends that over the past two years, Tillery has vigorously litigated the Hoormann (Madison County) case, by aggressively pursuing discovery, by serving multiple requests for production and interrogatories on them and by the filing of motions to compel.

"GSK produced over 853,000 pages of documents," GSK wrote. "As a result of the efforts in this case, the parties reached a comprehensive, nationwide settlement in which GSK has agreed to refund the total amount paid by class members for the purchase of Paxil and Paxil CR."

GSK also contends that if the St. Clair County case were to continue it would force them to continue to litigate claims it has already settled and would put all the parties at risk.

GSK also contends that if the settlement agreement does not gain final approval by Mendelsohn, the St. Clair County plaintiffs would then be free to proceed with their competing class action.

Mendelsohn has yet to set a hearing date to hear the motion.

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