‘You haven’t launched your Exocet’: could the ‘Seroxat is defective’ trial be going Freudian? Day 2
The claimants’ other QC, Michael Kent, finished off from yesterday with extensive selections from Dr Hotopf’s 2010 report, which reviewed the evidence on paroxetine/Seroxat/Paxil available then. Naturally, Mr Kent highlighted those studies in which the drug in question came out particularly badly, but stressed that it was almost always worst across the whole range of relevant published (and unpublished) studies.
Then came a bit more legal argument, and case law, on the ‘defect’ question from him, which I am not sure I fully grasped. To repeat, this blog is written by a non-lawyer!
A key precedent on pharmaceutical product liability, mentioned yesterday, is the 2002 litigation by 3rd-generation contraceptive pill users, which failed because the increased risk of blood clots was not shown to be double that of the older pills. It appears that the ‘doubling of risk’ legal test was determined during the trial itself.
Yesterday, the judge herself agreed this case was important, but today Mr Kent argued that reliance on it, especially the ‘doubling of risk’ issue, was ‘erroneous’. He made reference to crashing cars and exploding fridges – presumably to make the point that licensed drugs should not be subject to special rules, especially non-statutory rules quantifying notoriously slippery concepts as ‘risk’.
After Lunch GSK’s Mr Gibson started his response, picking up from his aggrieved tone of yesterday, lamenting the ‘acute injustice’ that the sixty-seven billion pound company was suffering. Seroxat was being taken by millions of people around the world, and was licensed in a hundred and forty-five countries. How could this honest, hard-working, British export success (he seemed to say) be subject to such negativity?
I felt a distinct urge to make a historical comparison with bloodletting: something that seemed to have lots of ‘efficacy and benefit’ to doctors and their patients, for hundreds of years, turned out to be almost always harmful. If the claimants’ barristers had the same thought, they kept it in reserve.
Then Mr Gibson ground through the Case Management Judgements again, stressing the redactions that had been made in David Healy’s report. This is clearly a strategy to make Healy appear unreliable, but I understand that in fact the nature and extent of the redactions were minimal.
As the afternoon came to a close Mr Gibson wound himself up again: ‘serious injustice…the claimants case is not tenable’.
The judge was clearly not impressed: ‘You haven’t launched your Exocet’ she said, meaning (I am fairly sure) that GSK had not made a formal application to have the case dismissed before any evidence is heard.
Mr Gibson indicated that the button might be pressed tomorrow: ‘I will take overnight instruction’, he announced.
Mrs Justice Lambert helpfully advised him: ‘if you ‘launch your Exocet’ you will need to say more’.
No doubt GSK’s mini-army of lawyers will be deployed into the small hours, exploring the case law about exploding fridges.