Three Nevada women recently won the biggest verdict yet in the ongoing hormone replacement therapy litigation against Wyeth – convincing a jury the company knew its drugs caused breast cancer but failed to test them or warn patients about the risks.
The Reno, Nev., jury awarded a total of $35 million in compensatory damages and $99 million in punitives to the three women.
The plaintiffs – who took Wyeth’s Prempro, Premarin or both for several years – argued that the drug maker “deliberately failed to test and instead promoted the drugs by purposely minimizing the risk,” said their attorney, Zoe Littlepage, who practices with Littlepage Booth in Houston and is lead counsel in the HRT multi-district litigation.
She said Wyeth claimed it didn’t believe any additional studies were needed and it did everything the Food and Drug Administration instructed it to do.
According to Littlepage, the most important evidence in the case came from Wyeth’s own documents, which indicate the company knew there was a risk of breast cancer associated with its drug but refused to complete studies to evaluate the link.
“The jury was very persuaded by Wyeth’s own documents that its conduct was really egregious,” said Littlepage, who represented the plaintiffs with her partner Rainy Booth.
Madison, N.J.-based Wyeth is facing more than 5,000 lawsuits nationwide over its hormone replacement therapy drugs.
While the latest verdict is heartening to plaintiffs’ attorneys handling these claims, given a number of setbacks in recent months, they say the result in a given case often depends on the judge and the jurisdiction.
“Each judge in my experience really evaluates the case in front of them based on [his or her] state law,” said Littlepage.
Esther Berezofsky, liaison counsel for the HRT litigation in New Jersey, agreed.
“The reality is what court and what jurisdiction you are trying a case in affects what evidence comes in, and how much evidence a judge allows affects a verdict,” said Berezofsky, who practices with Williams, Cuker & Berezofsky in Cherry Hill, N.J.
In the Nevada case, the jury initially awarded $135 million in compensatory damages. In response to a question from the judge, jurors explained they believed part of that award was intended to punish Wyeth for its conduct.
Once the judge explained that was incorrect, the jury went back and reduced the compensatory award. After the punitive phase of the trial, it awarded $99 million in punitives.
Wyeth has announced its plan to appeal the verdict.
“This flawed verdict is the result of a trial riddled with errors,” Lawrence V. Stein, Wyeth’s senior vice president and general counsel, said in a statement. “The … confusion surrounding the jury’s deliberations only confirm our view that this verdict will not survive on appeal.”
Despite the latest result, a number of other verdicts in favor of plaintiffs have been overturned in the past year.
Another setback occurred in September when Judge Allan L. Tereshko, the coordinating judge of the mass tort program in Pennsylvania, ruled that the statute of limitations on a breast cancer patient’s injury claim began to run when her cancer was diagnosed – not when she discovered it may have been caused by hormone replacement drugs.

2002 study

Prempro, which contains the hormones estrogen and progestin, was first sold in 1995. Some of the suits have also involved Pfizer, which manufactures Provera, another hormone replacement therapy drug that contains a progesterone replacement. Many women have taken Wyeth’s Premarin in combination with Provera.
The current wave of litigation arose after a study in July 2002, known as the Women’s Health Initiative, found an increased risk of breast cancer after taking Prempro.
The study began in 1997 and was scheduled to continue until 2005, but due to early data showing the drug’s adverse effects, researchers decided to terminate the study in May 2002. Among women who took the drug for five years or more, researchers concluded the risks exceeded the benefits and urged all of the women in the study to stop taking their pills.
The study found that Prempro increased the risk of breast cancer by 26 percent, heart attacks by 29 percent, strokes by 41 percent and blood clots by 113 percent.

Multiple defense wins

The latest verdict is the biggest yet for plaintiffs in the Prempro litigation.
However, in addition to the recent statute of limitations ruling, four plaintiffs’ verdicts – ranging from $1.5 to $3 million – have been overturned in less than a year. Two of the verdicts were entered in separate trials of the same case.
In addition to Nevada and Pennsylvania, litigation is ongoing in the mass tort court in New Jersey, where Wyeth is based. Wyeth has settled two cases so far, won one state court case in Pennsylvania and won two verdicts in Little Rock, Ark., where the multi-district litigation is based. Several trials are scheduled across the country in the months to come.
Some plaintiffs’ lawyers are concerned about the trend toward overturned verdicts in Pennsylvania since Judge Tereshko – who issued the ruling dismissing a hormone therapy plaintiff’s case as time-barred – arrived in the mass tort program.
Berezofsky said her firm, along with Littlepage Booth, had won a verdict in favor of a plaintiff in a HRT case, but Tereshko “became coordinating judge of the mass tort program and wrote a letter asking the appellate court to send the case back to him.”
He then overturned the $1.5 million verdict, Berezofsky said.
Austin, Texas attorney James Morris, who practices with Brent Coon & Associates, won a $1.5 million verdict against Pfizer, which was overturned in early September. His client had taken Pfizer’s drug, Provera, as well as Wyeth’s drugs, Premarin and Prempro.
Another judge, who works under Tereshko, granted a JNOV, holding that because the jury “didn’t make a finding against Wyeth, making a finding against Pfizer presented an inconsistent verdict,” Morris said.
All of these cases are currently on appeal or are expected to be appealed.