Pediatric Paxil Class Action Settlement

[Aaron Zigler]

GSK has agreed to settle a class action over their promotion of Paxil for prescription to minors. To settle the case GSK has agreed to pay $63 million to U.S. residents that bought Paxil for their minor (18 and under) children.

If you bought Paxil or Paxil CR for a child you will get 100% of what you spent if get your reciepts and you submit a claim.

You pharmacy is required to have these records. All you have to do is ask the pharmacy that filled the prescription for the records and they are required by law to give them to you. Mail them in and you will get every dime you spent back from GSK.

It is easy to get this money from GSK. All you have to do is fill out a form on http://paxilpediatricsettlement.com/

There seems to be alot of confusion on this board about class actions. Sometimes lawyers will recruit hundreds of injured people and settle their claims together. This is not a class action - they are individual claims that are settled collectively. These are sometimes called mass actions.

You can't recover personal injury damages in a class action. In a class action you can only get the damages that can be proven for everyone without them coming forward. No one can put a price on your suffering without knowing what you have gone through. So, in a class action, all you can get is price refunds.

In 2002 Baum Hedlum tried twice to have a Paxili withdrawl class action certifed and a California Federal Judge shot down both times for exactly this reason. You can't prove class wide that everyone was affected the same way and you can't put a price on everyone's damages class wide.

This settlement recovered 100% of everyone's out-of-pocket.

No gag order.

If you think you were hurt more than what you paid you can still sue and try to recover your pain and suffering. This settlement won't stop that. It won't impact any claim for injury/withdrawl/sucide.

I see a lot of people on this board wishing that they could make GSK pay in some manner. This is your opportunity to take the first bite. All you have to do is mail in a claim form and you will have cost GSK $63 million.

Then you can take the next step. If you have been hurt physically, hire a lawyer to pursue your individual claim. Then you get to decide what is enough money to compensate you for your pain. If its not enough, take them to trial.

Don't let your belief that you were hurt more then this stop you from taking this first bite from GSK. If no one claims the money, it will just go back to GSK.

I hope that this helps clear up some misunderstandings. If not, send me an email. I'll answer your questions.

[Katesmom]

There should also be one for those who took it during pregnancy. Their reps promoted it for use in pregnancy as well.

[Homerbcool]

..and for the unfortunate souls who had issues with their newborns..a few hundred dolars will make it just right...and then everyone at GSK can sleep like babies...but not babies born on paxhell....what a shame...

GSK should stop skirting the real issue here and come out clean....AND

THEY SHOULD COME UP WITH A REALISTIC TAPERING REGIMENT!!!

[Aaron Zigler]

There will be cases attempting to recover for those who took Paxil during pregnancy. As a matter of fact, there is one currently pending in Federal Court in Illinois called Baldwin v. GSK.

This issue is seperate from the settlement here.

[Katesmom]

No, I understand that it is seperate. I also know that there are people who are suing whose children were profoundly affected in utero. My daughter, thank God, was not, but GSK should be punished for touting it as safe for pregnant moms when it clearly was not at all. That's the only point I'm trying to make.

[Aaron Zigler]

I'm glad your daughter wasn't affected and I can't/won't/don't disagree with your sentiments.

[Aaron Zigler]

The following article appeared in American Lawyer Magazine. It's a mainstream monthly targeted to lawyers.

This article should help to further explain the settlement and the case's claims.

Hoormann et al. v. GlaxoSmithKline

Facing dozens of suits related to its blockbuster antidepressant drug Paxil, GlaxoSmithKline plc agreed October 27 to pay the largest settlement so far in claims related to its marketing of the drug to children and adolescents. It is the first class action that the company has settled on pediatric claims. Under the proposed settlement, GSK agrees to pay $63.8 million to adults who purchased the drug for minors in their care. The deal settles claims that the company marketed Paxil to them while withholding information about the drug's safety for children and adolescents. But the settlement covers only out-of-pocket expenses for parents and others who bought Paxil for children under their care.

In July 2004, lawyers filed suit in state court in Madison County, Illinois, alleging that the London-based drug company had marketed Paxil for pediatric use despite knowing from its own research that Paxil could lead to suicidal behavior and in fact worked no better than a placebo in children. The complaint alleged that, by doing so, the company violated the unfairness prohibition in state consumer fraud acts because the company knew that information, yet continued to promote the drug for pediatric use.
After two years of discovery, the company turned to the settlement table, agreeing to pay class members all out-of-pocket expenses on Paxil, or $15 to class members who don't have documents proving a purchase. More than a quarter of the total settlement-$16.6 million-will pay for attorneys' fees. The company settled a similar suit in 2004 with the New York attorney general's office for $2.5 million. Four other class actions--one in Minnesota federal court, and three in state court in California, Illinois, and Minnesota-also seek reimbursement for Paxil purchases, but three have been stayed until a final fairness hearing for the Madison County settlement in March. Two of the remaining suits were brought on behalf of other entities including Medicaid programs and insurance companies, which paid for the bulk of the pediatric prescriptions. If those are allowed to go forward and are successful, a plaintiffs attorney involved in the suits says GSK could ultimately be forced to pay insurers a much as $460 million to reimburse them.

FOR PLAINTIFFS TERI HOORMANN (BETHALTO ILLINOIS) ET AL.
KOREIN TILLERY: Stephen Tillery and associate Aaron Zigler. (Both are in St. Louis.)
One of the lead plaintiffs, Mary Kopsie, approached the firm in early 2004. SWEDLOW & ASSOCIATES: Stephen Swedlow. (He is in Chicago.) Tillery brought Swedlow into the case.

FOR DEFENDANT GLAXOSMITHKLINE PLC (LONDON)
KING & SPALDING: Dwight Davis and Meghan Magruder. (Both are in Atlanta.) The firm had previously handled consumer class actions for GSK.
GREENSFELDER, HEMKER & GALE: Russell Scott. (He is in Belleville, Illinois.) The firm served as local counsel. A.V.

The article has a few errors. 1) No attorneys' fees have been awarded. That's up to the court to decide and won't happen until after March 9, 2007. 2) The article doesn't mention that the settlement doesn't impact any personal injury/suicide/withdrawal claim. 3) All three other cases are trying to represent entities but are going to have a hard time because right now because they don't have any entities in them. 4) As I mentioned before, pharmacies are required to keep these records so anyone wanting to make a claim just has to go to their pharmacy and ask for their receipts.

[Aaron Zigler]

That same issue also had this story on the case. This story can give you some background on the litigation.

King & Spalding Lawyer Stirs State Judge’s Ire

KING & SPALDING PARTNER Dwight Davis might be feeling a little uneasy about his return to Madison County, Illinois, state court for a final settlement hearing this March. His run-ins with a judge there last year cost his client, Glaxosmithkline plc, hundreds of thousands of dollars in extra discovery charges. Davis got off on a bad foot and stayed there when he apparently the nuances of state law and then went overboard in at tempting to foil discovery requests. At a pretrial hearing in March 2005, Davis argued that the suit—filed in 2004 on behalf of adults who bought antidepressant blockbuster drug Paxil for children under their care—should be tossed, He noted that the state supreme court had thrown out a false advertising suit, Oliveira v. Amoco Oil, in 2002. Similarly, he said, the Paxil plaintiffs hadn’t stated a claim, because they failed to show that the drug didn’t work for their children that any were hurt by it, But Korein Tillery associate Aaron Zigler responded in court that Oliveira didn’t apply: plaintiffs had never claimed false advertising. In fact the suit was an “omission” claim that GSK allegedly concealed important health information. And under state precedent, plaintiffs didn’t have to show injury in order to seek damages.
Davis, however, wouldn’t drop it. He continued to refer to the false advertising precedent, and argued that the suit should be dismissed because plaintiffs hadn’t alleged that Paxil was ineffective. “That’s not an issue, I don’t think, is it?” Madison County judge Phillip Kardis cut in. Kardis refused to dismiss the suit, and things went from bad to worse during discovery negotiations. Davis asked that discovery be split into two, one phase for class certification issues, and one on the claim’s merits. But Zigler noted that Davis had already objected to every discovery request his client had submitted. Zigler’s comment triggered a judicial tirade. Davis’s efforts to protect his client, the judge suggested, were excessive and doomed to fail. “Apparently you have not read the, fable about the little boy that cried wolf,” Kardis said to Davis. “He cried wolf, and there was no wolf.
“Then one day he cried wolf and the wolf ate him,” the judge continued. “You are about to be eaten.” Then Davis objected to Zigler’s request that GSK submit a list of witnesses it would call to testify on the class certification issue, arguing that it wasn’t relevant to whether the class would be certified. “How can you explain that?” the judge seethed. “That’s beyond explanation.” Kardis denied Davis’s request for a protective order, and then threatened him with sanctions. Zigler suggested sardonically that Davis be required to sit for the Illinois bar. Instead, Davis agreed on behalf of his client to underwrite all discovery and produce it in electronic, precoded form for the plaintiffs. The motion for sanctions was withdrawn.
Davis declined to comment on the hearing. He continues to represent GSK in the matter. In August 2005, Judge Kardis struck all but four of GSK’s 38 defenses with prejudice; GSK settled for $63.8 million this past October.

The author wrote this article from the transcript of a hearing. I don't think that it is entirely accurate - but it's close. For example, producing the discovery electronically didn't cost GSK any money, but it saved us a lot.
If I get a chance I will post the transcript so that you can make up your own mind.

[ibamom]

Are many of you sending in the form excluding your self from this Settlement? May not be too many minors on here, but am wondering about this and thinking this is the way to go for us. I want to be do something at a later date if possible. I don't want to tie our hands by ignoring this.
Thanks,

[rdjanis]

ibamom, get yourself a lawyer and file suit against gsk. The children's suits are doing well as individual cases as apposed to classaction suits.

I'm not sure what you are asking in your post? LOL

[Aaron Zigler]

I know that this isn't a question for me but, if you want to ask me directly about the pros and cons of opting-out of this case I would be happy to discuss them.

You can call me at the office at: 800-678-9529.

[ibamom]

Upon reading the guidelines of this Settlement, it says you must opt out by a certain date or lose the right to suit at any further date.

[ibamom]

Originally Posted by Aaron Zigler

I know that this isn't a question for me but, if you want to ask me directly about the pros and cons of opting-out of this case I would be happy to discuss them.

You can call me at the office at: 800-678-9529.

Are you a lawyer? or how is your connection here?
I may call you.

[Aaron Zigler]

I am one of the lawyers who represent the class in this case. So since it sounds like you are a class member - I'm your lawyer.

If you want to talk, I'm available and I would be happy to discuss any concerns that you (or anyone else) have.

[Aaron Zigler]

Originally Posted by ibamom

Upon reading the guidelines of this Settlement, it says you must opt out by a certain date or lose the right to suit at any further date.

That's right. If you want to opt-out you must do so by 2/23/07.

Any class member that wishes to be excluded from the class must serve a written request, detailing the class member's name, address and phone number on the settlement administrator, and Class Counsel no later than February 23, 2007.

If you opt-out you will not receive any benefits of the settlement (100% of your purchase price), are not bound by its terms, and do not release claims against GlaxoSmithKline. However, the money that you would have gotten may be returned to GSK.

If you don't opt-out you can't file another lawsuit over claims released by this settlement.

Class members who have not timely exercised their right to opt out as provided in the Court-approved notice shall look solely to the Settlement Fund for settlement and satisfaction of all Released Claims.

Released claims are:

all claims that Plaintiffs and Class members asserted or could have asserted in the Action arising out of or relating to economic damages suffered as a result of their purchase of Paxil® or Paxil CR™ for ingestion by someone under the age of 18, including without limitation any claim for attorneys’ fees or other expenses of any type (“Released Claims”).

This means that you can't sue over the claims in this lawsuit again. So you can't stay in this case, and then sue again for the same thing: purchase price damages.

But, you can stay in the case (not opt-out) and submit a claim and still sue at another time for personal injury damages.

GSK agrees that this release does not cover, and that it will not assert this Release and covenant not to sue or the settlement of claims pursuant to this Settlement as a defense to any claim for personal injury which might or could have been sustained by the ingestion of Paxil® or Paxil CR™ and class members agree that this Settlement Agreement and all terms thereof shall not be admissible as evidence for any purpose, including cross-examination or impeachment, in any such suit or claim for personal injury. In any such action for personal injury, a class member may not, however, claim or recover economic damages covered by this Settlement Agreement.

This can be complex. That's why I'm available for anyone who wants to talk.

[rdjanis]

I definately agree, it can be complex, and can be difficult to understand when one is reading, as appose to having a live discussion. I was very confused for quite a bit LOL A phone call would be much better in this circumstance.

[Aaron Zigler]

Rita:
You can call that 800 number and reach me most days from 9-6 CST. If those times don't work let me know and we'll work something else out.

[rdjanis]

I meant it would be easier if ibamom called you... I have a case/lawyer already, but thanks for the offer Aaron.

[TryingtoGetWell]

Originally Posted by Aaron Zigler

I am one of the lawyers who represent the class in this case. So since it sounds like you are a class member - I'm your lawyer.

If you want to talk, I'm available and I would be happy to discuss any concerns that you (or anyone else) have.

Will there be a lawsuit re adults? The manufacturer withheld - and continues to withhold - information they had that would have prevented a great deal of suffering and possible permanent nerve or brain damage, as well as financial loss.

[rdjanis]

Aaron has not been on here for quite some time, if you have questions for him sending a pm may be the way to go.

[Aaron Zigler]

I've just been lurking....

There was a class action seeking to represent adults filed by Baum Hedlum in 1998. It was unsucessful.

If you have suffered damages that you believe were caused by Paxil, you should consult a lawyer about filing an individual lawsuit. You cannot just sit back and wait. If you do nothing, the statute of limitations on these claims will expire and you will have no claim at all.

If you want to discuss this more, I can try to find you a lawyer practicing in your area that you could contact.

[rdjanis]

I get so damned confused with these class actions. What class action suit was successful then? I know there have been some that paid out....

Apparently the classaction in Canada is at a stop right now, people have been told because there was no success in the US it doesn't look like it will move forward. This information is false, the fact is the class action was simply moved to a different state.

[Aaron Zigler]

There have been a number of class action suits filed over Paxil. To my knowledge only two in the United States have been successful.

In 2000, Nichols v. SmithKline Beecham was filed in Pennsylvania federal court. This case alleged that GSK used illegal tactics to keep generic Paxil off of the market and thus people who purchased Paxil paid more than they would have had the generic been available. The case did not allege that Paxil was unsafe or ineffective. It simply argued that people would have bought the cheaper generic version instead. This case settled in 2005 for $65 million. The settlement reimbursed money paid for Paxil to people who made a claim but everyone in the United States, whether or not you made a claim, released all claims related to the pricing of Paxil.

In 2001, Baum Hedlund filed Hamilton v. GSK in a California federal court. This suit alleged that GSK failed to disclose that Paxil was "addictive, induced dependency, or caused withdrawal reactions." This class action was consolidated with a number of other suits (both individual and class actions) and renamed In re Paxil. BH tried twice to have the case certified as a class action. Both motions were denied. I understand that some unknown number of the individual cases were settled confidentially, but the class action was unsuccessful. See e.g., In re Paxil Litig., 2002 WL 31375497, *2 (C.D.Cal. Oct. 18, 2002) (Vacating preliminary injunction finding plaintiffs were unlikely to succeed on the merits); In re Paxil Litig., 212 F.R.D. 539, 554 (C.D.Cal., Jan 13, 2003) (denying motion for class certification); In re Paxil Litig., 218 F.R.D. 242, 250 (C.D.Cal., Aug. 29, 2003) (denying second motion for class certification and dismissing non-California based claims).

On June 2, 2004, the New York Attorney General’s Office filed a fraud action against GlaxoSmithKline in New York State Court. New York ex rel. Eliot Spitzer v. GlaxoSmithKline, PLC, No. 04401707 (New York Cnty. Sup. Ct. filed June 2, 2004). The suit alleged that GlaxoSmithKline violated New York law by misrepresenting the safety and efficacy of Paxil® for treating children and adolescents. Id. at 4. Specifically, the Attorney General’s office alleged that GSK conducted at least five studies on Paxil’s effect on children and adolescents but only published one of these studies. Id . at 15-18; 32. The lawsuit alleged that GSK suppressed the negative results of the other studies, which failed to demonstrate that Paxil is effective and which suggested a possible increased risk of suicidal thinking and acts while marketing the drug as having “remarkable efficacy and safety in the treatment of adolescent depression.” Id. at 34, 38. This suit was never certified as a class action but settled two months later for $2.5 million. No money was distributed to people who purchased Paxil.

Later in 2004 a number of other class actions were filed that made the same allegations as the New York suit. Smith v. SmithKline Beecham Corp., 04-cc-0590 (Orange Cnty., Cal. Sup. Ct. filed June 21, 2004); Hoormann v. SmithKline Beecham Corp., 04-L-715 (Madison Cnty. Ill. filed Jul. 2, 2004); Engh v. SmithKline Beecham Corp., 04-12879 (Hennepin Cnty, Minn. Dist. Ct. filed August 30, 2004). Gerdts v. SmithKline Beecham Corp., 04-3500 (D.Minn. filed Aug. 2, 2004). Baldwin v. SmithKline Beecham Corp., 04-L-548 (St. Clair Cnty. Ill. filed Sep. 23, 2004). These factual claims also gave rise to at least one securities fraud claim. In re GlaxoSmithKline PLC, 2006 WL 2871968, Fed. Sec. L. Rep. P 94, 104 (S.D.N.Y. Oct 06, 2006). But this case was dismissed.

Hoormann v. GSK settled last October for $63.8 million. It pays claimants 100% of their out-of-pocket expenses with proof or up to $100 of their out-of-pocket expenses without proof.

In 2006, BH filed Blain v. Smithkline Beecham Corp., No. 06-CV-1247 (E.D.Pa filed Mar. 23, 2006) in federal court in Pennsylvania. This suit alleged that Paxil caused sucidality and sought to represent all individuals under the age of 18 in the United States who attempted suicide or the families of individuals who killed themselves as a result of an adverse reaction to Paxil. On Jan 25, 2007, the Blain court ruled that the case could not proceed as a class action. BH did not appeal this ruling. Thus, Blain only affects the individual families that are named in the complaint and is an unsuccessful class action. Subsequently the Judge also ruled that the case should not be in Pennsylvania but should instead be brought in the Court where the individual families live and transferred the case to Kansas.

One of the Pediatric class actions (Baldwin) also sought to represent "women of child-bearing age". But those claims were dismissed last week.

As far as I know, the only pending Paxil class actions are Smith and Engh. They were seeking the same relief as Hoormann. I believe, but don't know, that they are going to try to go forward to try to collect the money spent by insurance companies for Paxil.

To the best of my knowledge there isn't a single pending class action seeking to recover money for people who purchased or ingested Paxil.

[ssri-research]

Originally Posted by Katesmom

There should also be one for those who took it during pregnancy. Their reps promoted it for use in pregnancy as well.

That is just criminal...

[Angela]

my daughter is withdrawing from paxil...she has suffered injuries that I believe were caused by Paxil.....we live in Sarasota, Florida and I am unable to find an attorney that is willing to help me file a lawsuit against GSK...Aaron said he would try to find me someone but he has not responded of late....I dont know what I am going to do..I guess I can go the the law library and try to file a lawsuit alone, but Aaron was against that action. Any suggestions?