MADISON - ST. CLAIR RECORD

St. Louis attorney John Driscoll is asking the Fifth District Appellate Court to reverse a Madison County judge's decision that cuts him out of a class action pie.

On Wednesday Driscoll filed notice of interlocutory appeal regarding Associate Circuit Judge Ralph Mendelsohn's Dec. 28 decision granting GlaxoSmithKline's (GSK) motion to enforce an injunction which would prohibit plaintiffs in his St. Clair County Paxil class action suit from holding a certification hearing.

In his appeal, Driscoll asks the appellate court to reverse Mendelsohn's order and to remand the case back with instructions to return the parties to the "status quo" before the injunction was entered.

The pharmaceutical agreed in October to allocate $63.8 million and any obligations it may otherwise have to settle a class action case brought by attorney Stephen Tillery in Madison County.

Tillery stands to reel in a whopping $16.8 million award in attorneys' fees.

His 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 issued the injunction concluding 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 in which Driscoll represents Donita Baldwin and Stephanie and Doug Birkner.

Despite Mendelsohn's injunction, Driscoll and his co-counsel, Christopher Cueto of Belleville, 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 and they asked O'Malley to stay the case.

Cueto and Driscoll opposed GSK's 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 and need to go to Madison County to take care of it before he can proceed.

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 Driscoll and 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 and Driscoll 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.