In re: Glaxosmithkline LLC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 30, 2014
Decided June 4, 2014
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-2051
IN RE:
GLAXOSMITHKLINE LLC,
Petitioner
Petition for Writ of
Mandamus.
No. 12 C 6403
James B. Zagel, Judge.
Order
Defendant petitions for a writ of mandamus in this tort suit, which arises
under the diversity jurisdiction. Petitioner developed paroxetine hydrochloride,
an antidepressant, which received the FDA’s approval and was marketed as
Paxil. After patent protection ended, other manufacturers began to sell
generic paroxetine hydrochloride. Stewart Dolin used one of these generic
substitutes for Paxil and later committed suicide, allegedly as a consequence of
the drug; his estate asks for damages from petitioner, even though petitioner did
not make the drug that Dolin took. (Mutual Pharmaceutical Co. v. Bartlett, 133 S.
Ct. 2466 (2013), makes it difficult if not impossible to hold the generic
manufacturer liable.)
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 14-2051 Page 2
The district court denied petitioner’s motion for summary judgment, ruling
that the inventor and initial marketer of a drug can be liable for harms caused by
the sale of generic equivalents. The district judge then denied petitioner’s request
to certify the decision for an interlocutory appeal under 28 U.S.C. §1292(b).
Petitioner asks us to issue a writ of mandamus that would compel the district
court to grant its motion for summary judgment.
Mandamus is appropriate to rectify a district court’s usurpation or grave
misuse of power, when an appeal from final judgment would be an inadequate
remedy. That standard has not been met. A district court does not abuse its
power by taking one view, rather than another, of a debatable legal issue. The
district court recognized that a majority of federal courts has ruled in favor of the
pioneer manufacturer, but others have ruled just as the district court did. The
Supreme Court has yet to resolve this conflict. While the issue escapes definitive
resolution, taking one position rather than another cannot be a usurpation of
power.
What is more, the question can be resolved on appeal from a final judgment,
should petitioner lose in the district court. Petitioner expresses concern that it
will win on some other ground (perhaps a jury will conclude that the drug’s
warnings about suicide risk are adequate, that warning was unnecessary, or that
the drug did not cause Dolin’s death). The possibility that the “innovator
liability” issue will not matter in the end would be a poor reason to engage in
interlocutory review. Most cases potentially entail many subjects that turn out
not to matter; the process of litigation winnows issues. That is a major benefit of
the final-decision rule, not a reason to disregard it.
The petition for a writ of mandamus is denied.

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