Pfizer claims fraudulent joinder in St. Clair County Zoloft suit

By Steve Korris | Jan 18, 2012


EAST ST. LOUIS – Drug maker Pfizer claims a brother of a St. Clair County judge played a procedural game to file a suit over birth defects in St. Clair County court.

Pfizer lawyer Charles Joley of Belleville removed the suit to U.S. district court on Jan. 11, arguing that Christopher Cueto of Belleville should have filed it in federal court.

"In a transparent attempt to deprive Pfizer of a federal forum, plaintiffs have fraudulently misjoined distinct personal injury claims from around the country," Joley wrote.

"The fraudulent misjoinder doctrine is intended to ensure that a defendant's statutory right to remove cannot be subverted by procedural gamesmanship, such as the type engaged in by plaintiffs here."

Christopher Cueto is brother of Circuit Judge Lloyd Cueto. His term expires in December of this year and he is not seeking retention in the November election.

In the removal notice, Joley also wrote that the children at issue in the complaint received different parental care, were exposed to different risk factors, and had different genetic risk factors.

"Moreover, the injuries alleged also vary greatly," Joley wrote.

He wrote that scientific data for Zoloft changed over the course of an eight year range among the births.

On Jan. 17, U.S. District Judge Michael Reagan set a Feb. 1 deadline for Cueto's response and a Feb. 9 deadline for Pfizer's reply.

Cueto sued Pfizer on Dec. 2.

The complaint alleges that depression drug Zoloft caused birth defects in five children.

Cueto wrote that Pfizer highlighted the safety of Zoloft while it knew of design and manufacturing defects and the risk of congenital defects.

He listed six defects by name and seven by acronyms.

"As a direct and proximate result of the acts and omissions of defendant, the mother plaintiffs ingested Zoloft, which was causally related to and contributed to the minor plaintiffs' diagnosis for congenital birth defects and related injuries," Cueto wrote.

"Plaintiffs suffered extreme emotional distress, anguish, physical injuries, and mental suffering."

He wrote that they experienced extreme embarrassment, shame and anxiety.

Plaintiffs include Mary and David Saville of Virginia, Terry and Todd Cochran of Ohio, Anita Kinslow and Wendell Houchens of Kentucky, Erica Woodley of New York, Antwynette Golliday of Lebanon, Ill. and their children.

The complaint showed two were born in 2004, and the others in 2000, 2006, and 2008.

Pfizer answered, but not in St. Clair County.

After removing the suit, Joley wrote that the claims might be barred by misuse or unintended use of Zoloft.

Joley wrote that they might be barred by negligence of plaintiffs and third parties.

He wrote that they might be barred by statutes of limitations.

He wrote that they are barred because Pfizer designed, manufactured and marketed Zoloft in accordance with the state of the art under federal regulations.

"The claims asserted in the complaint are barred because the risks, if any, associated with the use of Zoloft are outweighed by Zoloft's utility," Joley wrote.

He wrote that the First Amendment protects Pfizer's advertising and public statements.

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