As a dangerous drug lawyer, I was pleased to see an appellate victory for a family whose daughter suffered serious birth defects from the use of a drug her mother was advised and permitted to use throughout pregnancy. In Fredericks v. Malouf, Eric and Kristine Malouf sued Kristine’s neurologist and obstetrician over injuries to their daughter, Kimberly. Kristine had been taking the drug Depakote (valproic acid) to treat seizures before her pregnancy, under the supervision of Dr. Ruth Fredericks. They discussed pregnancy with Fredericks and an obstetrician, Dr. Martin Tucker, but neither doctor took Kristine off the Depakote. The Maloufs sued Fredericks in Hinds County and added Tucker to the complaint later, whereupon the defendants moved to change venue to Rankin County. The trial court denied this, finding it had been abandoned, and the Mississippi Supreme Court agreed.
Kristine started taking Depakote in 1994 under Fredericks’s supervision, and went to Fredericks in 1995 to discuss the possibility of pregnancy with Depakote and epilepsy. Fredericks referred them to Tucker, and they conceived in mid-1996. Kristine continued taking Depakote under both doctors’ care, though Fredericks was no longer treating her after November of 1997. In March of 1997, Kristine gave birth to a seemingly healthy Kimberly. However, Kimberly was diagnosed at 22 months with a type of brain injury called periventricular leukomalaca, and at seven years with valproate syndrome, a collection of facial abnormalities. Her parents sued Fredericks in 2002, claiming Fredericks prescribed insufficient Depakote that caused Kristine to have seizures during pregnancy that caused the brain damage. When they added Tucker to the suit in 2006, they changed their case to allege that the brain damage was caused by Depakote itself.
Tucker moved to transfer the venue to Rankin County, arguing that all treatment was performed at his office there. Fredericks joined the motion. However, Tucker did not file a supplemental joint motion for the change of venue for nearly three years. The trial court thus denied the motion, finding the defendants had abandoned it by failing to pursue it for three years, during which time the deadline for pretrial motions passed and discovery continued. Defendants filed an interlocutory appeal.
On appeal, defendants argued that venue cannot be waived, pointing to a state law requiring all lawsuits against doctors to be filed in the county where the treatment took place. The Mississippi Supreme Court disagreed, noting that it has never ruled that defendants cannot waive their rights. All litigants are on notice that they may lose rights by failing to comply with the court, the high court said. Though Tucker submitted evidence that he tried to reschedule the hearing on his motion — and the trial court apparently used rules not permitted by Mississippi’s Rules of Civil Procedure — the Supreme Court found that the trial court’s nonstandard rules didn’t keep Tucker from requesting a hearing. In the time during which he failed to act, the court noted, he otherwise actively participated in the process. Thus, it upheld the lower court’s finding that the venue motion had been abandoned.
As a defective drug attorney, I’m particularly interested in the drug aspect of this case because Depakote is in pregnancy category D. That means it’s known to cause birth defects, but doctors may still prescribe it if they believe the benefits outweigh the risks. In fact, medical literature shows that the first report of harm to a fetus from a mother’s Depakote use was in 1980, sixteen years before Kristine Malouf got pregnant. Over the last three years, the FDA has issued two warnings to pregnant women taking Depakote, saying the drug can increase neural tube defects and lower IQs in their babies. As a result, doctors are now encouraged to find another epilepsy drug to prescribe as an alternative during pregnancy, or reduce dosage of Depakote and add folic acid supplements if there is no alternative. Depakote’s maker, Abbott Laboratories, is also facing allegations by ex-employees that it paid kickbacks to doctors who prescribed it for off-label use in dementia patients. As a pharmaceutical liability lawyer, I believe patients are entitled to the fullest possible information on Depakote’s safety as well as its marketing practices.
Carey, Danis & Lowe represents clients who were seriously hurt or lost a loved one because of their use of a dangerous or defective prescription drug. If you’d like to tell us your story and learn more about your rights, call us today at 1-877-678-3400 or send us an email.
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