PAXIL discovery mandated in ED Pa

The widower of a woman who committed suicide after taking the anti-depressant drug PAXIL (paroxetine) has won a significant ruling in his wrongful death suit against the drug's manufacturer that allows him to pursue his claim that the company hid the truth about the drug's side effects from the FDA.

In her 13-page opinion in Hoppe v. SmithKline Beecham Corp., Eastern District of Pennsylvania Judge Anita B. Brody refused to dismiss the suit on statute-of-limitations grounds, finding instead that the plaintiff must be allowed discovery on issues relating to when the manufacturer first learned of Paxil's alleged risk of suicide.

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SmithKline's lawyers -- Joseph K. Hetrick and Joshua G. Schiller of Dechert, along with Chilton Davis Varner, Katherine Arthur and Todd P. Davis of King & Spalding in Atlanta -- moved to dismiss the suit, arguing that it was filed too late because Pennsylvania has a two-year statute of limitations for wrongful death suits.

But Jon Hoppe's lawyers -- Harvey Sernovitz of Philadelphia and Kenneth G. Gilman of Gilman & Pastor in Boston -- argued that the statute of limitations should be tolled due to SmithKline's "fraudulent concealment."

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Pennsylvania's doctrine of fraudulent concealment, Brody said, is "based on a theory of estoppel, and provides that the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts."

Under Pennsylvania law, Brody said, a defendant's fraudulent concealment "will not absolutely bar the limitations defense, but rather, will toll the limitations period only until such time as the plaintiff discovers or reasonably should have discovered the fraud."

According to the plaintiff's brief, internal SmithKline documents show that the manufacturer knew as early as 1997 of studies showing suicidality in Paxil users.