Much has been said about the preemption of state actions for Illinois personal injury cases or Illinois wrongful death lawsuits. A recent federal district court decision ruled that a failure-to-warn lawsuit is not preempted by the federal statutes. The suit was brought by the parents of a teenager who committed suicide while taking the antidepressant Paxil.
The plaintiffs’ son was prescribed Paxil by his dermatologist, not for his acne, but to treat a psychiatric disorder in which the individual is overly concerned about real or imagined defects in their physical appearance. Shortly after the second prescription of Paxil was refilled, the plaintiff’s son committed suicide.
The parents alleged that the pharmaceutical company was liable for their son’s death because it failed to warn the physician about the risk of suicide that the drug posed to children and adolescents. The court rejected the argument raised by pharmaceutical giant, Glaxo-SmithKline (GSK), that preemption applied to this case.
GSK filed a motion for summary judgment citing the ruling in favor of preemption in Colacicco v. Apotex, Inc. (521 F.3d 253 (3d Cir. 2009)), a case where an adult’s suicide was allegedly due to taking Paxil. In that case the court held that the plaintiff’s failure-to-warn claims were preempted because they conflicted with the Federal Food, Drug and Cosmetic Act.
But in the current case, the senior district court judge denied GSK’s motion, writing that Colacicco did not apply because “the Third Circuit explicitly limited its holding ‘to circumstances in which the FDA has publicly rejected the need for a warning that plaintiffs argue state law requires.'” While Colacicco primarily focused on “whether a claim for failure to issue a warning regarding adult suicidality was preempted”, there was no mention of studies concerning adolescent use of Paxil. Therefore the pharmaceutical litigation case may be brought against GSK because the preemption clause does not apply.
This decision regarding preemption is a departure from many past rulings which have been hesitant to waive the preemption clause. While the implications of the recent ruling remain to be seen, it could mean a shift in the way court’s approach preemption claims to favor the plaintiff’s interests over that of pharmaceutical companies.
Kreisman Law Offices has been practicing pharmaceutical law and medical malpractice law in Cook County for over 30 years, serving areas such as Englewood, Mount Prospect, and Barrington.
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