Attorneys are set to meet in Pennsylvania today for an initial status conference in the Multi District Litigation (MDL) over dozens of women's claims that ingesting the anti-depressant Zoloft during their pregnancies caused birth defects in their children.
Although cases from around the nation make up the MDL that was created in April, five cases filed in Illinois and Missouri continue to bounce between area circuit courts and federal courts as attorneys wrangle over severance and jurisdictional motions.
On one side of the battle are the plaintiffs' attorneys, who assert that while their cases include multiple plaintiffs spanning from the Metro East area to New York, they belong in the circuit courts of St. Clair and St. Louis counties where they were originally filed.
On the other side, however, is Pfizer, the manufacturer of the anti-depressant that argues the attorneys in these local cases fraudulently misjoined distinct personal injury claims from across the nation. The pharmaceutical company has removed some of these cases to federal court and asked the court to sever some of the claims.
Pfizer's attempt to put these cases in the MDL, which includes about 138 cases, has been countered by motions from the plaintiffs' attorneys to remand the matters back to the circuit courts, creating a back-and-forth battle that continues as the MDL planning process gets under way today.
Judge Cynthia Rufe of the U.S. District Court for the Eastern District of Pennsylvania has been assigned to handle the MDL in the Zoloft litigation. She referred questions on the matter from a reporter to Pennsylvania attorney Steve Corr and New York attorney Mark Cheffo.
She appointed Corr, who is involved in several cases in the MDL as co-counsel, as interim liaison counsel for the plaintiffs and Cheffo as the interim liaison counsel for the defense. Cheffo represents Pfizer and Greenstone LLC, which makes the generic version of Zoloft.
Both Corr and Cheffo applied for the liaison counsel spots and dozens of other attorneys filed applications with Rufe to serve on the plaintiffs' steering committee, coveted positions that allow attorneys to help craft the litigation process. Corr said he expects Rufe will make official appointments for these roles at today's meeting.
The two attorneys late last month submitted an agenda for the status conference, which includes an overview of the litigation, leadership roles, state court litigation, coordination between federal and state courts and a proposed case management order, as well as discussions over scheduling and planning the pleading and discovery processes.
Corr said Illinois is not the only state currently experiencing circuit court battles over Zoloft litigation. He said California is too and that it's not uncommon for matters like this to be fought in both a MDL and state courts.
Texas attorney Rebecca King agreed.
King said she is working with several other attorneys to represent plaintiffs in complaints filed in St. Clair and St. Louis counties.
The St. Louis County case was brought by 46 plaintiffs, or 23 distinct groups made up of parents and minor children, against Pfizer, Greenstone and other defendants.
While the lead plaintiffs, Shannon Foster and her minor child, both reside in Missouri, many of the other plaintiffs live in New York, New Jersey, Virginia, California, Tennessee, Louisiana, Utah and Colorado, among other states.
Pfizer removed the Foster case to the federal court in Missouri, claiming that plaintiffs' fraudulently misjoined the distinct claims of 23 different plaintiff groups into one complaint. They asked the court to sever the claims and move the matter to the MDL.
Pfizer made the same argument, as well as one over forum, in a case brought in St. Clair County by Belleville attorney Christopher Cueto, who is representing a handful of parents and minor children alleging injury from Zoloft. The lead plaintiff is the Saville family of Virginia.
Cueto did not return a phone call seeking comment. He is also representing the Schuhardt family of Smithton and the Wilson family of Indiana, each of which filed separate complaints in St. Clair County along with dozens other families from across the nation.
Following Pfizer's removal of the Schuhardt case to federal court, the plaintiffs asked the court to remand the case back to the circuit court. In the Wilson case, Pfizer filed a motion to dismiss the claims of the out-of-state resident pursuant to forum non conveniens and sever the others.
The fifth local case, which lists the Lancaster family of St. Louis as the lead plaintiff, also remains tied up at the circuit court level. Like some of the other Illinois and Missouri cases, Pfizer asked the court in the Lancaster case to sever the claims, saying it was improper for the plaintiffs to join distinct claims of 21 unrelated families from 16 states in one complaint.
King, who is involved in the Foster and Saville cases, said Pfizer recently moved to sever the claims of the five plaintiffs in the Saville case into separate actions. She said plaintiffs' attorneys in that case are "engaged in that battle."
While King's firm is working to fight severance in the Saville case in circuit court and moving the Foster case to federal court, it is also handling cases included in the MDL, a dual strategy that she said "is pretty common when you have a mass tort like this."
"You don't want all your eggs in one basket so to speak," King said.
"A lot of times you need to go ahead and get cases filed and work toward some sort of resolution, whether it's a trial or settlement. The MDL hasn't really taken off until today either. It's really at the infancy stage."
She said plaintiffs' attorneys in the Saville case are waiting for the court to rule on the defense motion to sever the claims. King said "we believe that we are ultimately going to prevail" on the matter and hopes to start the discovery process soon.
Pfizer, however, believes the court should rule in its favor.
Christopher Loder, a spokesman for Pfizer, said in a statement that, "With respect to cases filed in St. Clair County, the company does not believe these cases belong in these courts as nearly all the plaintiffs and the company are not based in this jurisdiction."
He added that, "Pfizer is asking the court to move these cases to the Federal Multidistrict Litigation Court in Philadelphia, which was designated to handle these cases in an efficient fashion and which Pfizer believes is the appropriate venue."
Although at least a handful of cases filed in St. Clair and St. Louis counties remain tied up in motions, the MDL will move forward. These cases could be transferred to the MDL or dealt with at the circuit court level, depending on how the courts rule on Pfizer's pending motions.
Arguments over jurisdiction aside, the plaintiffs contend that their ingestion of Zoloft caused their children to be born with birth defects, ranging from vascular malformation, a cleft lip and palate, holes in their hearts, autism and in some cases, death.
They claim that had they known about the dangerous side effects, they never would have taken the drug. The plaintiffs also contend that instead of informing parents about the dangers of Zoloft, Pfizer tried to increase its sales by falsely marketing the drug.
"Pfizer's sales force blitzed doctor's offices with literature and verbal presentations designed to convince doctors and consumers that Zoloft was a superior drug for treatment of, among other things, depression during pregnancy," the complaint in the Schuhardt case states. "Meanwhile, Pfizer hid important information about the risks of taking Zoloft during pregnancy. Instead, Pfizer chose to not to reveal the risks associated with taking Zoloft during pregnancy because it feared such information would cause Zoloft sales to plummet."
On behalf of Pfizer, Loder said in a statement that "there is extensive science supporting the safety and efficacy of Zoloft, and the medicine carries accurate, science-based and FDA approved information on its benefits and risks."
"Considering the large patient population, very few cases have been filed to date," he said. "While we have great sympathy for all families dealing with birth defects, the Company stands by Zoloft and
we intend to vigorously defend it."
He added that, "It is important to keep in mind that depression is a common but serious and potentially debilitating illness and there can be considerable risks if depression is left untreated, including during pregnancy. In fact, as recently as December 2011, the FDA revised its guidance regarding all SSRIs, the class of anti-depressants that includes Zoloft, advising health care professionals 'not to alter their current clinical practice of treating depression during pregnancy.' Indeed, the FDA warned that pregnant women who stop taking an SSRI are at risk of unwanted side effects or a relapse of depression."