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Johnson v. Smithkline Beecham Corp.

United States District Court, E.D. Pennsylvania

April 1, 2015

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

Page 820

[Copyrighted Material Omitted]

Page 821

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, 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, Plaintiffs: ARI Y. BROWN, LEAD ATTORNEY, HAGENS BERMAN SOBOL SHAPIRO LLC, 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, 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 JOHN MARSHALL, JOHN GROVER, SHARON ANDERSON, TAMMY JACKSON, CAROLYN SAMPSON, TED MANN, RICHARD ANDERSON, DEBRA JOHNSON, COLLEEN VAN VLEET, Plaintiffs: ARI Y. BROWN, LEAD ATTORNEY, HAGENS BERMAN SOBOL SHAPIRO LLC, SEATTLE, WA; ASHLEY A. BEDE, BARBARA A. MAHONEY, SHELBY R. SMITH, TYLER S. WEAVER, LEAD ATTORNEYS, PRO HAC VICE, HAGENS BERMAN SOBOL SHAPIRO LLC, 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, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA.

For KIM BRANSCUM, MARK HARRELSON, JOSE NAVAMUEL, TERRIE BOLTON, YOLANDA PEREZ, KATHLEEN GUNN, PHILIP CASTRO, JR., Plaintiffs: ARI Y. BROWN, LEAD ATTORNEY, HAGENS BERMAN SOBOL SHAPIRO LLC, 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.

For KIM BRANSCUM, MARK HARRELSON, JOSE NAVAMUEL, TERRIE BOLTON, YOLANDA PEREZ, KATHLEEN GUNN, PHILIP CASTRO, JR., Plaintiffs: ASHLEY A. BEDE, BARBARA A. MAHONEY, SHELBY R. SMITH, TYLER S. WEAVER, LEAD ATTORNEYS, NICK STYANT-BROWNE, PRO HAC VICE, STEVE W. BERMAN, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA.

For DARREN GRIGGS, CAROLYN JEAN GROVER, WILLIAM TYLER, III, Plaintiffs: ARI Y. BROWN, LEAD ATTORNEY, HAGENS BERMAN SOBOL SHAPIRO LLC, SEATTLE, WA; ASHLEY A. BEDE, BARBARA A. MAHONEY, NICK STYANT-BROWNE, SHELBY R. SMITH, TYLER S. WEAVER, LEAD ATTORNEYS, PRO HAC VICE, HAGENS BERMAN SOBOL SHAPIRO LLP, SEATTLE, WA; CRAIG R. SPIEGEL, LEAD ATTORNEY, HAGENS BERMAN LLP, SEATTLE, WA; JEFFREY L. KODROFF, LEAD ATTORNEY, SPECTOR ROSEMAN KODROFF & WILLIS, P.C., PHILADELPHIA, PA; STEVE W. BERMAN, LEAD ATTORNEY, 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, 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, THOMAS J. SHEEHAN, THOMAS S. WISWALL, PHILLIPS LYTLE LLP, ONE CANALSIDE, 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, PHILLIPS LYTLE LLP, ONE CANALSIDE, 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, 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, LEAD ATTORNEY, PRO HAC VICE, DANIEL S. PARISER, ARNOLD & PORTER LLP, WASHINGTON, DC; PAIGE H. SHARPE, LEAD ATTORNEY, PRO HAC VICE, ARNOLD & PORTER, WASHINGTON, DC; ROBERT B. SOBELMAN, SARAH C. DUNCAN, LEAD ATTORNEYS, PRO HAC VICE, ARNOLD & PORTER LLP, NEW YORK, NY; 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, ONE SOUTH DEARBORN ST, 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.

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MEMORANDUM

Paul S. Diamond, J.

In this products liability action, Debra Johnson alleges that over 50 years ago, thalidomide--a morning sickness medication manufactured and distributed by Defendants--caused her to suffer severe birth defects. Because the governing one-year limitations period has long expired, I will grant summary judgment and dismiss Plaintiff's claims as time-barred.

I. PROCEDURAL BACKGROUND

Ms. Johnson is one of fifty-two Plaintiffs born in the late 1950s or early 1960s who have brought thalidomide actions in this Court. I have recently set forth the lengthy history of this litigation. See Johnson v. Smithkline Beecham Corp., No. 11-5782, 2015 WL 1004308 (E.D. Pa. Mar. 9, 2015); Johnson v. SmithKline Beecham Corp., 55 F.Supp.3d 603, 2014 WL 5285943 (E.D. Pa. Oct. 16, 2014). Briefly, Ms. Johnson initiated the instant action on September 24, 2012 in the Philadelphia Common Pleas Court against GlaxoSmithKline LLC, GlaxoSmithKline Holdings, Inc., and Grünenthal GmbH. (Case No. 12-5455, Doc. No. 1.) Plaintiff alleged negligence, negligent design, fraud, negligent misrepresentation, concert of action, and civil conspiracy against all Defendants, and negligent hiring and alter ego liability against Grünenthal only. (Id.)

Invoking diversity jurisdiction, Defendants removed to this Court, where the case was assigned to Judge Yohn. Plaintiff (a Louisiana citizen) moved to remand, arguing that because the GSK Defendants' " nerve center" was in Pennsylvania, they could not remove the case under the " forum-defendant" rule. (Doc. No. 20); see 28 U.S.C. § 1441(b) (" A civil action otherwise removable solely on the basis of [diversity] jurisdiction . . . may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." ); Hertz Corp. v. Friend, 559 U.S. 77, 93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (for diversity purposes, a corporation's citizenship is determined by the location of its " nerve center" ).

On October 15, 2012, Judge Yohn placed the case in suspense pending the Third Circuit's review of my determination in a companion thalidomide case that GSK's " nerve-center" was in Delaware. (Doc. No. 18.) After the Third Circuit upheld my ruling, Judge Yohn denied Plaintiff's remand motion. (Doc. No. 31); Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013).

On August 26, 2013, Defendants moved to dismiss Plaintiff's claims as time-barred

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under Pennsylvania and Louisiana law. (Doc. No. 36.) On September 9, Plaintiff filed the instant, Amended Complaint, in which she proceeds against only the GSK Defendants, alleging negligence, fraud, and negligent misrepresentation. (Am. Compl., Doc. No. 41.) Accordingly, on September 17, Judge Yohn denied Defendants' dismissal motion as moot. (Doc. No. 43.)

On September 24, all thalidomide cases filed in this Court (including the instant case) were consolidated before me for pretrial purposes. (Case No. 11-5782, Doc. No. 94.) Although the GSK Defendants did not move to dismiss the instant case, they did so in companion actions, arguing strenuously that because these Plaintiffs sustained their birth injuries half a century earlier, their claims were long time-barred. (Doc. Nos. 74, 86.) I denied their Motions because I could not determine at the Rule 12 stage " the viability of Plaintiffs' equitable tolling arguments." (Doc. No. 92 ¶ 4.)

The Parties have now completed discovery in all but a few cases. As I have discussed, when it became apparent that Counsel for all Plaintiffs, Hagens Berman Sobol Shapiro LLP, was obstructing discovery, on June 17, 2014, I appointed William T. Hangley as Special Master. Johnson, 2014 WL 5285943, at *3-4. On December 4, 2014, Mr. Hangley found that Hagens Berman's bad faith and dishonesty in prosecuting the claims of three thalidomide Plaintiffs warranted the imposition of sanctions pursuant to 28 U.S.C. § 1927 and the Court's inherent authority. Johnson v. SmithKline Beecham Corp., No. 11-5782, 2014 WL 6851277 (E.D. Pa. Dec. 4, 2014) (Hangley, Special Master). On March 9, 2015, I overruled Hagens Berman's objections to Mr. Hangley's Report and Recommendation and agreed that sanctions should be imposed. Johnson, 2015 WL 1004308. Mr. Hangley is presently preparing a Report that will include his calculation of recommended sanctions.

The GSK Defendants filed the instant Motion for Summary Judgment on July 3, 2014. (Doc. No. 260.) Plaintiff responded, GSK replied, and Plaintiff submitted supplemental responses. (Doc. Nos. 283, 315, 367, 376.)

On October 28, 2014, the GSK Defendants informed me that " [a]ll [P]laintiffs currently represented by Hagens Berman--with the sole exception of Debra Johnson--will dismiss with prejudice all claims against the GSK [D]efendants" (leaving their claims against the other Defendants in litigation). (Doc. No. 394.) In exchange, the GSK Defendants agreed to withdraw their discovery requests and not to seek sanctions against Hagens Berman. (Id.) GSK and the firm formalized this agreement on November 14 in a joint Motion for Voluntary Dismissal. (Doc. No. 409.)

In light of my concerns as to whether these Plaintiffs had actually agreed to dismiss their claims against GSK (or whether Hagens Berman had prevailed upon them to agree so that the firm could avoid further sanctions), I ordered Mr. Hangley to determine " whether each of the twenty-eight Plaintiffs referenced in the November 14th Motion for Voluntary Dismissal knowingly, voluntarily, and intelligently consented to dismissing with prejudice his or her claims against the GSK Defendants--or any other Defendants." (Doc. No. 420 (internal citations omitted).) Those matters are pending before Mr. Hangley.

With respect to Ms. Johnson, however, GSK's summary judgment motion " remains pending . . . with both sides retaining all rights, including the right to appeal and the right to seek sanctions." (Doc.

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No. 394.) Accordingly, I now consider the GSK Defendants' summary judgment motion and all related submissions. (Doc. Nos. 260, 283, 315, 367, 376.)

II. FACTUAL BACKGROUND

I have resolved all disputed facts and made all reasonable inferences in Plaintiff's favor.

Plaintiff was born on February 23, 1959 on England Air Force Base in Alexandria, Louisiana. (Am. Compl. ¶ 16.) Her birth injuries are extensive and grievous. She has bilateral radial clubbed hands. (Id.) She is missing her right thumb. (Stephens Decl. ¶ 7, Doc. No. 283.) Although she has a left thumb, " there [is] no bony attachment to the rest of her hand." (Id.) Because she has no radius in her right arm, her right forearm is four inches long. (Am. Compl. ¶ 16.) She has a shortened left radius. (Stephens Decl. ¶ 7.) She has worn braces to straighten her arms, and has had multiple surgeries, including 1966 procedures to remove an inguinal hernia and to create " two thumbs out of her index ...


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