West Virginia state court is not a venue where defendants often have high expectations that their motions to dismiss or for summary judgment will succeed, let alone that they can end a mass tort litigation there without a single case being tried or settled. But on February 15, 2017, the Mass Litigation Panel of West Virginia entered an order granting summary judgment in favor of Quinn Emanuel’s client Pfizer in the last two West Virginia cases involving allegations that the prescription antidepressant Zoloft causes birth defects.
For several years, a team of Quinn attorneys has been defending Pfizer in Zoloft birth defect litigation. Most of the cases were centered in a federal MDL in the Eastern District of Pennsylvania, where Pfizer was able to obtain exclusion of plaintiffs’ causation experts, leading to voluntary dismissal of over 300 cases and summary judgment in over 300 other cases. But there have also been hundreds of cases filed in state courts around the country as well.
One plaintiffs’ attorney with a large number of cases from all over the country chose to file them in West Virginia. He began with approximately 40 cases, which were assigned to West Virginia’s Mass Litigation Panel. In 2014, Quinn Emanuel successfully obtained dismissal of 29 cases on grounds of forum non conveniens, in a decision affirmed by the West Virginia Supreme Court. The precedent established by this case makes it more difficult for attorneys to file cases in West Virginia on behalf of plaintiffs from other states against non-West Virginia defendants.
Other West Virginia Zoloft birth defect cases were voluntarily dismissed, leaving only 4 cases remaining to be tried. In August 2016, Quinn Emanuel obtained summary judgment for Pfizer in one of those cases. Summary judgment was granted in a second case in October, 2016.
In the last two cases, the plaintiffs designated former FDA Commissioner David Kessler as their expert on the adequacy of the Zoloft label. After plaintiffs withdrew him rather than produce him for deposition, Pfizer moved for summary judgment. In motion papers prepared by Quinn Emanuel, Pfizer argued that West Virginia law requires expert testimony to support plaintiffs’ claims that the Zoloft label was inadequate, especially in light of the fact that Zoloft had an FDA-approved warning regarding use in pregnancy and a consensus within the scientific community that the evidence does not support a causal relationship between Zoloft and birth defects. Although the West Virginia Supreme Court had not had a chance to speak to this particular issue, Pfizer argued that in several cases involving complex medical and scientific questions, the West Virginia Supreme Court had held that expert testimony is required on matters that are beyond the common knowledge and experience of the average jurors. The Panel agreed with Pfizer’s arguments, held that expert testimony was required and granted Pfizer’s motion for summary judgment.