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Tuesday, September 17, 2019

Widow asks federal judge to reinstate $3M verdict vs GSK in suicide suit, despite SCOTUS appeal rejection

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By Dan Churney | Jul 5, 2019


In the wake of the U.S. Supreme Court’s recent refusal to hear her case, the widow of a Chicago man, who killed himself after allegedly taking the generic form of the antidepressant Paxil, is trying to have a federal district judge restore her $3 million verdict against drugmaker GlaxoSmithKline, because the company allegedly didn’t push federal regulators to revise the drug’s warning label.

“Principles of equity and justice demand the judgement currently in favor of GSK be vacated and the previous judgment entered in favor of  Wendy Dolin be reinstated. Anything less would be a tattering of justice and result in an erosion of the public’s confidence in the judicial process,” attorneys for Dolin said.

On May 28, the nation’s high court denied, without comment, Dolin’s petition for the court to hear arguments why pharmaceutical company GSK should have to pay the $3 million a jury ordered in 2017 in U.S. District Court for the Northern District of Illinois. The company is headquartered in the United Kingdom, with American offices centered in Philadelphia.

Dolin’s husband, lawyer Stewart Dolin, killed himself in 2010. Wendy Dolin alleged he was taking paroxetine, the generic version of GSK’s antidepressant Paxil. She alleged the drug’s label, which is identical for both Paxil and paroxetine and was written by GSK, did not adequately warn users the drug could increase the risk of suicide. Dolin alleged GSK knew of the increased risk. 

The drug company has maintained it repeatedly tried to persuade the U.S. Food and Drug Administration to let it upgrade the suicide warnings on the label, but the FDA refused. Dolin countered GSK should have tried harder. On appeal, GSK was found to have made a determined effort, but had no ultimate control over labels. As a result, the verdict was tossed.

In December, Dolin asked the Supreme Court to take her appeal in light of the court’s holding in a similar case, Merck v. Albrecht. In that ruling, the court told a federal appellate panel in Philadelphia to revisit its decision allowing suits against drugmakers over labels, even if the FDA rejected a manufacturer’s attempt to revise a label to include more warnings.

Having failed with the Supreme Court, Dolin filed a request June 27 to have a Chicago district court, where the case was tried, again take up the matter and restore the verdict. Dolin said district courts are empowered to do so by Federal Rules of Civil Procedure, which authorize the courts to “reexamine a judgment in light of an intervening change of law and to vacate judgments when appropriate to accomplish justice.” 

Besides being unfair, Dolin is contending the toppling of the verdict means the FDA can violate the U.S. Constitution.

“This Court would have to conclude the FDA forbade GSK from issuing a truthful warning — such a prohibition would constitute a proscription on speech in direct violation of the First Amendment, which protects the dissemination of truthful information and likewise protects patients’ rights to receive such truthful information,” Dolin argued.

The case is before U.S. District Judge William Hart, who also presided over the earlier trial at which the $3 million verdict was awarded.

Dolin is represented by attorneys with the firms of Baum, Hedlund, Aristei & Goldman, of Los Angeles, and Rapoport Law Offices, of Chicago.

GSK is represented by Dentons US LLP, and Husch Blackwell LLP, both of Chicago; Phillips Lytle LLP, of Buffalo, N.Y.; and Troutman Sanders LLP  and King & Spalding, both of Atlanta, Ga.

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Organizations in this Story

Baum, Hedlund, Aristei & Goldman GlaxoSmithKline Rapoport Law Offices U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois U.S. Supreme Court

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