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Johnson v. Smithkline Beecham Corp.

United States District Court, E.D. Pennsylvania

October 16, 2014

GLENDA JOHNSON, et al., Plaintiffs,
v.
SMITHKLINE BEECHAM CORPORATION, et al., Defendants

Page 604

For ESQ WILLIAM T. HANGLEY, Special Master: ASHELY M. CHAN, LEAD ATTORNEY, HANGLEY ARONCHICK SEGAL & PUDLIN PC, PHILADELPHIA, PA; WILLIAM T. HANGLEY, LEAD ATTORNEY, HANGLEY ARONCHICK SEGAL & PUDLIN, PHILADELPHIA, PA.

For GLENDA JOHNSON, STEVEN LUCIER, ROBERT MURRAY, DIANE KESSLER, PHILIP YEATTS, ANNETTE MANNING, MARY J. MCPARTLAN HURSON, JOHN MARSHALL, JOHN GROVER, SHARON ANDERSON, TAMMY JACKSON, CAROLYN SAMPSON, TED MANN, RICHARD ANDERSON, DEBRA JOHNSON, COLLEEN VAN VLEET, KIM BRANSCUM, MARK HARRELSON, JOSE NAVAMUEL, TERRIE BOLTON, YOLANDA PEREZ, KATHLEEN GUNN, PHILIP CASTRO, JR., MARY SELLS, MARK ENDRES, YVONNE ENGLISH-MONROE, JOHN SKELTON, III, COLLEEN VAN VLEET, DORIS BRUST, ALAN HORRIDGE, CHRISTOPHER SIMEONE, REBECCA ALEXANDER, ROEL GARZA, DAVID HOBBS, GEAROLD LEDSOME, CRAIG CHARELSTON, CARMELLA NORCROSS, EDWARD WORTHAN, DARREN GRIGGS, Plaintiffs: ARI Y. BROWN, LEAD ATTORNEY, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA; ASHLEY A. BEDE, BARBARA A. MAHONEY, SHELBY R. SMITH, TYLER S. WEAVER, LEAD ATTORNEY, PRO HAC VICE, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA; CRAIG R. SPIEGEL, HAGENS BERMAN LLP, SEATTLE, WA; JEFFREY L. KODROFF, JOHN A. MACORETTA, MARY ANN GEPPERT, SPECTOR ROSEMAN KODROFF & WILLIS, P.C., PHILADELPHIA, PA; NICK STYANT-BROWNE, PRO HAC VICE, STEVE W. BERMAN, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA.

JOHN MARSHALL, Plaintiff, Pro se, LACOMBE, LA.

For DARREN GRIGGS, CAROLYN JEAN GROVER, WILLIAM TYLER, III, Plaintiffs: ARI Y. BROWN, LEAD ATTORNEY, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA; ASHLEY A. BEDE, BARBARA A. MAHONEY, SHELBY R. SMITH, TYLER S. WEAVER, LEAD ATTORNEYS, PRO HAC VICE, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA; CRAIG R. SPIEGEL, HAGENS BERMAN LLP, SEATTLE, WA; JEFFREY L. KODROFF, SPECTOR ROSEMAN KODROFF & WILLIS, P.C., PHILADELPHIA, PA; NICK STYANT-BROWNE, PRO HAC VICE, STEVE W. BERMAN, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA.

For SMITHKLINE BEECHAM CORPORATION, doing business as GLAXOSMITHKLINE, Defendant: MICHAEL T. SCOTT, LEAD ATTORNEY, REED SMITH LLP, PHILADELPHIA, PA.

For GLAXOSMITHKLINE, LLC, Defendant: AMOR A. ESTEBAN, LEAD ATTORNEY, SHOOK HARDY & BACON LLP, SAN FRANCISCO, CA; CINDY K. BENNES, LISA L. SMITH, MARTHA M. HARRIS, LEAD ATTORNEYS, PRO HAC VICE, PHILLIPS LYTLE LLP, BUFFALO, NY; FARAH TABIBKHOEI, LEAD ATTORNEY, PRO HAC VICE, REED SMITH LLP, LOS ANGELES, CA; MICHAEL T. SCOTT, STEPHEN J. MCCONNELL, LEAD ATTORNEYS, SANDRA MARIA DIIORIO, REED SMITH LLP, PHILADELPHIA, PA; RAYMOND A. CARDOZO, LEAD ATTORNEY, PRO HAC VICE, REED SMITH LLP, SAN FRANCISCO, CA; SONJA S. WEISSMAN, LEAD ATTORNEY, REED SMITH LLP, SAN FRANCISCO, CA; TAMAR P. HALPERN, LEAD ATTORNEY, THOMAS J. SHEEHAN, THOMAS S. WISWALL, PHILLIPS LYTLE LLP, BUFFALO, NY; BRENNAN J. TORREGROSSA, GLAXOSMITHKLINE, PHILADELPHIA, PA; CRAIG A. KNOT, SIDLEY AUSTIN LLP, CHICAGO, IL; ERIC L. ALEXANDER, WASHINGTON, DC.

For GLAXOSMITHKLINE HOLDINGS, LLC, Defendant: MICHAEL T. SCOTT, LEAD ATTORNEY, REED SMITH LLP, PHILADELPHIA, PA; SANDRA MARIA DIIORIO, REED SMITH LLP, PHILADELPHIA, PA.

For SANOFI-AVENTIS, U.S., L.L.C., Defendant: BRUCE KELLY, LEAD ATTORNEY, ANAND AGNESHWAR, ARNOLD & PORTER, NEW YORK, NY; KENNETH A. MURPHY, LEAD ATTORNEY, DRINKER BIDDLE & REATH LLP, PHILADELPHIA, PA; MELISSA A. KU, ROBERT B. SOBELMAN, SARAH C. DUNCAN, LEAD ATTORNEYS, PRO HAC VICE, DANIEL S. PARISER, ARNOLD & PORTER LLP, WASHINGTON, DC; PAIGE H. SHARPE, LEAD ATTORNEY, PRO HAC VICE, ARNOLD & PORTER, WASHINGTON, DC; CRAIG A. KNOT, SIDLEY AUSTIN LLP, CHICAGO, IL; MICHAEL T. SCOTT, REED SMITH LLP, PHILADELPHIA, PA.

For GRUNENTHAL GMBH, Defendant: DANIEL A. SPIRA, ELIZABETH C. CURTIN, JENNIFER A. FOSTER, LESLIE ELAINE KUHN-THAYER, MICHELLE A. RAMIREZ, LEAD ATTORNEYS, PRO HAC VICE, SARA J. GOURLEY, SIDLEY AUSTIN LLP, CHICAGO, IL; ALBERT G. BIXLER, ECKERT SEAMANS CHERIN & MELLOTT LLC, PHILADELPHIA, PA; CRAIG A. KNOT, SIDLEY AUSTIN LLP, CHICAGO, IL; EUGENE A. SCHOON, SIDLEY AUSTIN BROWN & WOOD, CHICAGO, IL; MICHAEL T. SCOTT, REED SMITH LLP, PHILADELPHIA, PA.

For GLAXOSMITHKLINE HOLDINGS (AMERICAS), INC., Defendant: AMOR A. ESTEBAN, LEAD ATTORNEY, SHOOK HARDY & BACON LLP, SAN FRANCISCO, CA; CINDY K. BENNES, LISA L. SMITH, MARTHA M. HARRIS, LEAD ATTORNEYS, PRO HAC VICE, PHILLIPS LYTLE LLP, BUFFALO, NY; FARAH TABIBKHOEI, LEAD ATTORNEY, PRO HAC VICE, REED SMITH LLP, LOS ANGELES, CA; MICHAEL T. SCOTT, STEPHEN J. MCCONNELL, SANDRA MARIA DIIORIO, LEAD ATTORNEYS, REED SMITH LLP, PHILADELPHIA, PA; RAYMOND A. CARDOZO, LEAD ATTORNEY, PRO HAC VICE, REED SMITH LLP, SAN FRANCISCO, CA; SONJA S. WEISSMAN, LEAD ATTORNEY, REED SMITH LLP, SAN FRANCISCO, CA; TAMAR P. HALPERN, LEAD ATTORNEY, PHILLIPS LYTLE LLP, BUFFALO, NY; BRENNAN J. TORREGROSSA, GLAXOSMITHKLINE, PHILADELPHIA, PA; CRAIG A. KNOT, SIDLEY AUSTIN LLP, CHICAGO, IL; ERIC L. ALEXANDER, WASHINGTON, DC; THOMAS J. SHEEHAN, THOMAS S. WISWALL, PHILIPS LYTLE LLP, BUFFALO, NY.

Page 605

MEMORANDUM

Paul S. Diamond, J.

Edmund Andre is one of fifty-two Plaintiffs who allege that they have severe birth defects caused over 50 years ago by thalidomide--a drug manufactured and distributed by Defendants--then prescribed to pregnant women for morning sickness. Because Pennsylvania's two-year limitations period has long expired, I will grant summary judgment and dismiss Plaintiff's claims as time-barred.

I. PROCEDURAL BACKGROUND

Mr. Andre is one of thirteen Plaintiffs who together filed a single personal injury Complaint on October 25, 2011 in the Philadelphia Common Pleas Court against SmithKline Beecham Corp., GlaxoSmithKline LLC, GlaxoSmithKline Holdings,

Page 606

LLC, Sanofi-Aventis, U.S., LLC, Avantor Performance Materials, and Grünenthal GmbH. (Compl., Docket No. 11-6711, Doc. No. 1, Ex. A.) Plaintiff brings negligence and negligent design claims against Grünenthal and the GSK Defendants. (Id. ¶ ¶ 343-65.) He brings fraud, negligent misrepresentation, negligent hiring, concert of action, civil conspiracy, and alter ego liability claims against Grünenthal only. (Id. ¶ ¶ 367-375, 399-436.) Thirty-six additional Plaintiffs filed substantially similar complaints in the Philadelphia Common Pleas Court from 2010 to 2013. (Case ID Nos. 110503100, 110803830, 111003316, 120800665, 120902711, 121101057, 121102810, 121202937, 130200838, 130800419.) All forty-nine Plaintiffs are represented by the same lead counsel: the law firm of Hagens Berman Sobol Shapiro LLP. The Complaint verifications for all forty-nine Plaintiffs were signed by Counsel, not by Plaintiffs themselves.

Invoking diversity jurisdiction, Defendants removed the all the cases to this Court. (Docket Nos. 11-3510, 11-5782, 11-6711, 12-4542, 12-5455, 12-6431, 12-6657, 12-7125, 13-758, 13-4591.) Plaintiffs--some of whom are Pennsylvania citizens--vigorously contested removal, arguing that the " nerve center" of the GSK Defendants is also in Pennsylvania, thus defeating complete diversity. See Hertz Corp. v. Friend, 559 U.S. 77, 93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (for purposes of diversity jurisdiction, a corporation's citizenship is determined by the location of its " nerve center" ). Members of this Court were split on this jurisdictional issue, which I certified for interlocutory appeal. Compare Yeatts v. SmithKline Beecham Corp., No. 11-6711, 2012 WL 5488907 (E.D. Pa. Mar. 29, 2012) (Pennsylvania nerve center), Murray v. SmithKline Beecham Corp., No. 11-3510, 2012 WL 5488905 (E.D. Pa. Mar. 29, 2012) (same), Brewer v. SmithKline Beecham Corp., 774 F.Supp.2d 721 (E.D. Pa. 2011) (same), and Monroe v. SmithKline Beecham Corp., No. 10-2140, 2010 WL 2606682 (E.D. Pa. June 25, 2010) (same), with Johnson v. SmithKline Beecham Corp., 853 F.Supp.2d 487 (E.D. Pa. 2012) (Delaware nerve center), and White v. SmithKline Beecham Corp., No. 10-2141, 2010 WL 3119926, (same). The Third Circuit agreed to hear the matter, and ruled that there was complete diversity. Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 358 (3d Cir. 2013).

All the thalidomide cases in this Court were then consolidated before me for pretrial purposes. (Doc. No. 94.) During discovery, three additional Plaintiffs filed suit in this Court on April 15, 2014. (Docket No. 14-2186.)

Defendants moved to dismiss as time-barred the claims of only five Plaintiffs: Glenda Johnson, Debra Johnson, Steven Lucier, Robert Murray, and Diane Kessler. (Doc. Nos. 74, 86; Docket No. 12-5455, Doc. No. 36.) All fifty-two Plaintiffs alleged primarily that Defendants' " fraudulent concealment" had equitably tolled the applicable two-year limitations clock. Each Plaintiff made separate fraudulent concealment allegations that may be divided into two categories: (1) those Plaintiffs who, as a result of Defendants' misrepresentations respecting domestic distribution of thalidomide, did not know their mothers had ingested thalidomide during pregnancy; and (2) those Plaintiffs who knew their mothers had ingested the drug, but, as a result of Defendants' misrepresentations, mistakenly believed thalidomide was a safe drug. All Plaintiffs alleged that they

suffer from severe birth defects caused by thalidomide . . . . Until less than two years ago, Plaintiffs did not discover (and could not reasonably have discovered)

Page 607

that thalidomide caused their injuries. . . . But evidence that only recently came to light based on extraordinary investigative efforts, reveals that [Defendants' statements] that thalidomide did not cause thalidomide injuries in the United States was not the truth. . . . Now armed with the truth for the first time, [Plaintiffs] seek damages resulting from Defendants' negligence, fraud, negligent misrepresentation, negligent hiring, conspiracy and alter ego . . . .

(Compl. ¶ ¶ 1, 3, 8; see also e.g., Compl. ¶ ¶ 4, 8, 10, 15, Docket No. 12-5455, Doc. No. 1, Ex. A.; Compl. Introduction, Docket No. 11-3510, Doc. No. 1, Ex. A.)

Explicitly recognizing their obligation to plead fraud " with particularity," Plaintiffs alleged twenty specific false statements or fraudulent omissions that Defendants made respecting the safety and availability of thalidomide in the United States. (Compl. ¶ ¶ 369(1-20), 375.) Plaintiffs also alleged that Defendants knew their misrepresentations were false at the time they made them, and intended that " the public, including Plaintiffs and their mothers" would rely on those misrepresentations. (Id. ¶ 373.) As alleged, " Plaintiffs did rely on those misrepresentations and concealments, to their detriment" --the misrepresentations caused Plaintiffs to refrain from suing Defendants for over five decades. (Id.)

Plaintiffs thus pled all the elements of fraud required by Rule 9 and Pennsylvania law. Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620, 626 (3d Cir. 1984) (fraudulent concealment must be pled with particularity (citing Fed.R.Civ.P. 9(b))); Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 860 (Pa. 2005) (plaintiff must prove fraudulent concealment " by clear, precise, and convincing evidence" ). Accepting Plaintiffs' allegations as true, I denied the motions to dismiss without prejudice, noting that " I cannot determine, at this early stage in the litigation, the viability of Plaintiffs' equitable tolling arguments." (Doc. No. 92 ¶ 4.)

Mr. Andre, who suffers from severe birth defects, alleged that while his mother was pregnant with him, she took thalidomide to treat her " serious morning sickness." (Compl. ¶ 16.) He also alleged that " [w]hen he was about 10 to 12 years old, [Plaintiff] and his father discussed the cause of his birth defects, and [Plaintiff's] father told him that his mother had taken thalidomide while pregnant with him." (Id. ¶ 18.) Plaintiff alleged that because he " could not find the doctor" who prescribed the drug, and could not obtain his mother's medical records, he had " no clues to follow" and thus could not determine " who was responsible for developing and distributing the drug." (Id.) These allegations appear to contradict other allegations that Plaintiff knew Defendants had manufactured and distributed thalidomide, but detrimentally relied upon Defendants' false representations and omissions respecting the drug. Defendants did not move to dismiss.

Having put front and center the question of when Plaintiffs knew thalidomide may have caused their injuries, once discovery began, Plaintiffs repeatedly refused to provide an answer. For instance, on October 22, 2013, Defendants propounded interrogatories asking each Plaintiff to " [i]dentify the date on which you contend you were first on notice of a thalidomide-related claim." (Doc. No. 137, Ex. A.) Defendants also asked each Plaintiff to " [i]dentify . . . each alleged fact or document set forth in your Complaint which you contend was fraudulently concealed [and] identify how and when you first learned about each allegedly concealed fact or document." (Id.) All Plaintiffs collectively filed a single objection to these interrogatories, contending that because the

Page 608

inquiries were " premature and unduly burdensome," they would provide no substantive responses. (Id., Ex. B.)

After I ordered Plaintiffs to provide full and complete responses, each Plaintiff provided the identical response, purporting to rely on the " cumulative effect" of Defendants' " misrepresentations." (See, e.g., Doc. No. 164, Ex. C.) Because, as Plaintiffs themselves acknowledged in their Complaints, fraud must be pled with particularity, I ruled that because " [e]ach Plaintiff's claim of fraudulent concealment turns on her own knowledge," " each Plaintiff must provide verified individual responses disclosing each fact or document that was fraudulently concealed, and when Plaintiffs learned of these facts." (Doc. No. 166.)

On May 9, 2014, Defendants asked me to order Plaintiffs to comply with discovery requests respecting Plaintiffs' thalidomide-related online and social media communications and research. (Doc. No. 200.) I granted the Motion and ordered Plaintiffs to provide individual responses by May 18. (Doc. Nos. 206, 222.) On June 12, Defendants presented compelling evidence that, contrary to my Orders (and Plaintiffs' discovery obligations), several Plaintiffs had failed to produce highly probative, relevant evidence, including online and social media posts revealing that some Plaintiffs have known for decades that thalidomide caused their birth defects. (Doc. No. 232.) Plaintiffs responded that they failed to produce these materials because, inter alia : (1) some Plaintiffs could not remember making the posts; (2) some Plaintiffs suffer from short-term memory loss; (3) in light of the volume of responsive documents, Plaintiffs' Counsel could not ensure accurate and complete discovery responses; and (4) the withheld posts were not responsive to Defendants' discovery requests. (Doc. No. 238.)

Defendants argued that after unsuccessfully seeking to obstruct these highly material discovery requests, Plaintiffs did not provide truthful or complete responses. Defendants urged that this misconduct warranted dismissal of all Complaints with prejudice. (Doc. No. 232.) Although I declined to dismiss, on June 17, I proposed, pursuant to Federal Rule of Civil Procedure 53(b)(1), appointing William T. Hangley to serve as Special Master to supervise discovery respecting Plaintiffs' knowledge of when they learned that thalidomide might have caused their injuries. (Doc. No. 239); Fed.R.Civ.P. 53(b)(1). On June 26, after all Parties stated that they had no objection, I appointed Mr. Hangley. (Doc. No. 256.)

Since then, Defendants have filed ten summary judgment motions against Plaintiffs, asking me, inter alia, to dismiss the claims as time-barred. (Doc. Nos. 245, 246, 258, 259, 260, 272, 274, 281, 291, 312.) Three Plaintiffs have conceded that their claims should be dismissed. (Doc. Nos. 263, 277, 318.) Ten other Plaintiffs have voluntarily dismissed their claims with prejudice. (Doc Nos. 182; 284, 305, 325, 326, 328, 332, 360.) Three of these Plaintiffs had either filed suit or made a thalidomide-related administrative claim decades ago. (Doc. No. 364 at 63-64.) Hagens Berman has asked to withdraw from representing four other Plaintiffs, stating that it cannot contest Defendants' limitations motions without contravening the Code of Professional Conduct. (Doc. Nos. 207, 301, 342, 343.) Finally, Defendants have sought sanctions against Hagens Berman with respect to the claims of three of those Plaintiffs who voluntarily dismissed their actions: ...


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