February 23, 2010 12:33 PM

The Prempro Roller Coaster Continues for Wyeth

Posted by Zach Lowe

The litigation against Wyeth in Pennsylvania over cancer cases linked to its now-defunct hormone replacement therapy drug Prempro hits on as many touchy legal issues as any set of cases we can remember. The cases involve patients stricken with cancer, the duty of a pharmaceutical company to warn doctors about possible dangers of a drug, a damning study, maddening statute of limitations issues, and judges who can't seem to agree on, well, anything. 

Our colleagues at The Legal Intelligencer have been chronicling the litigation on a case-by-case basis--over 1,500 mass tort cases are pending in Philadelphia Common Pleas Court alone!--and they've got a doozy for us today. A jury Monday awarded a female plaintiff nearly $9.5 million combined in punitive and compensatory damages even though she was diagnosed with breast cancer "well after" the release in July 2002 of a landmark study showing links between Prempro and breast cancer, the Intelligencer reports. The case is believed to be the first in the U.S. involving a plaintiff diagnosed after the release of the study, called the Women's Health Initiative, that revealed links between Prempro and breast cancer. Other cases have involved women diagnosed before the release of the WHI, and judges at various levels of Philadelphia's state court system have come to wildly different conclusions in those matters, according to the Intelligencer's archives. 

One example from earlier this month: A judge at the Common Pleas Court gave both sides a victory when he reduced a punitive award to one plaintiff from $75 million to about $5.6 million but issued a finding that Wyeth failed to adequately warn the plaintiff's doctor about Prempro's risks, the Intelligencer reports. That followed a string of defeats for plaintiffs in which judges at the same court overturned verdicts against Wyeth, citing statute of limitations issues and evidentiary shortcomings. But a different judge overturned one of those rulings, and the court is reconsidering a pile of dismissals that had been based on the alleged failure of plaintiffs to sue Wyeth within two years of being diagnosed with breast cancer, the Intelligencer says. (Plaintiffs attorneys have argued that the two-year clock should not have begun ticking until after the July 2002 release of the Women's Health Initiative, and one judge in January agreed with that rationale and revived a suit against Wyeth that had been dismissed based on statute of limitations issues, according to this story in the Intelligencer.

The record on these cases is such that both sides have claimed lopsided victories. Plaintiff lawyers have claimed a five-for-five record in cases that have gone to trial at the Common Pleas Court, while Wyeth released a statement Monday claiming to have won 24 of 29 hormone replacement therapy cases that had been set for trial at the court. 

Either way, there is going to be a lot of work here for Wyeth's litigation firms of choice. It's a diverse group that has included Williams & Connolly, Reed Smith, McCarter & English, Nelson Mullins Riley & Scarborough and other firms. 

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