BPB Attorneys Fight To Send Paxil Birth Defect Cases Back To State Court
The law firm of Bailey Peavy Bailey PLLC (“BPB”) has asked a federal appellate court to intervene and send a handful of Paxil birth defect cases back to Philadelphia County, Pennsylvania state court, where the cases were originally filed and had been proceeding for more than a year.
Using a procedural device favorable to defendants, Paxil’s maker GlaxoSmithKline (“GSK”) “removed” (transferred) nine BPB Paxil cases in June 2013, well past a federal deadline that forbids such “removals” more than a year after the cases were originally filed. BPB’s appeal argues that GSK’s removals were untimely and improper, and are merely an attempt to wreak havoc on plaintiffs’ trial preparation and the state court’s trial schedule for the cases. BPB also contends that an earlier removal attempt in the same cases—which was rejected by a federal district judge in 2011—cannot later be reviewed and changed by another federal court, as GSK has urged the federal courts to do in the cases.
At least two federal judges in the Eastern District of Pennsylvania already agreed with BPB’s position that it was too late for GSK to remove those cases now, rejecting GSK’s attempts to maneuver around the federal deadline for case removal. Those two federal judges also ruled that the federal court’s 2011 rejection of GSK’s removal attempts could not be ignored by later federal judges considering the same issues. Unfortunately, in a handful of other BPB Paxil cases that GSK re-removed in June 2013, other federal judges treated the 2011 removal rejection as a “nullity” and effectively reversed the federal court’s 2011 decision, this time refusing to send those removed cases back to state court. Apparently because of the “split” of decisions among all those federal judges, the United States Court of Appeals for the Third Circuit accepted BPB’s appeal on the removal issues. BPB and associated appellate counsel submitted their brief in April 2014, and followed-up with a reply brief in June 2014. The appellate court will hear oral arguments for the appeal on September 8, 2014.
BPB’s claimants are represented in the appeal by Adam Peavy, Justin Jenson, Robert Cowan, and co-appellate counsel Howard J. Bashman.