A Philadelphia jury returned a $28 million punitive damages verdict Monday against two drugmakers over the drugmakers' hormone-replacement therapy drugs that the jury found caused a plaintiff's breast cancer.
And a $75 million punitive damages verdict from the end of October in another hormone-replacement therapy, or HRT, mass tort case was unsealed by court order after the other jury verdict was rendered around 2 p.m. Monday.
On Friday, the jury in Kendall v. Wyeth awarded more than $6 million in compensatory damages to plaintiffs Donna Kendall and John Kendall Jr., their attorneys said. In the punitive damages part of the case decided Monday, the jury awarded $16 million against Wyeth, which is now owned by Pfizer, and $12 million against Pharmacia & Upjohn, which also is now owned by Pfizer. The total verdict adds up to more than $34 million.
Philadelphia Common Pleas Judge Victor J. DiNubile Jr. presided over the trial.
In the Barton v. Wyeth case, which had its hefty punitive damages award publicly revealed for the first time Monday, the jury awarded $3.7 million in compensatory damages and $75 million in punitive damages Oct. 29 after a reverse bifurcation trial, said Esther Berezofsky of Williams Cuker Berezofsky in Cherry Hill, N.J., counsel of record in the Barton case. The total verdict awarded to plaintiff Connie Barton in that case is $78.7 million.
According to a plaintiffs attorney count, of the five cases that have gone to trial in Philadelphia in the last three years, all of the cases have ended in plaintiffs' verdicts.
Pfizer countered in a press statement that of the 34 HRT cases that have gone to trial around the country there have been only four plaintiffs' verdicts that have not been set aside.
There are more than 1,500 HRT cases pending in Philadelphia's Complex Litigation Center, the Philadelphia Court of Common Pleas' center for mass torts litigation. Zoe Littlepage of Littlepage Booth in Houston was trial counsel involved in trying both the Barton and Kendall cases. Tobi Millrood of Pogust Braslow & Millrood in Conshohocken, Montgomery County, and Ron Rosenkranz of Finkelstein & Partners in Newburgh, N.Y., were also plaintiffs counsel in Kendall.
Wyeth's defense counsel in the Kendall case included Michael T. Scott and Barbara R. Binis of Reed Smith in Philadelphia. Charles P. Goodell Jr. of Goodell DeVries Leech & Dann in Baltimore and Gita Rothschild of McCarter & English in Newark, N.J., represented Upjohn.
After the verdict, the defense attorneys declined comment and referred The Legal Intelligencer to Pfizer's media relations department.
During a brief statement to the jury on punitive damages, Millrood told the jurors they had to decide what it would take for the defendants to finally listen and safeguard consumers from ill effects from their HRT drugs.
In awarding punitive damages for Kendall's injuries, "we're not talking about a fender bender or something that is insignificant," Millrood said. "We're talking about taking away someone's dignity. We're talking about taking away someone's femininity."
Goodell, who spoke on behalf of both Upjohn and Wyeth regarding punitive damages, said that the jury's message had been received by the companies' scientists, sales staff and managers after the compensatory damages verdict. He said that the companies had never wished harm.
"These companies have important work," Goodell said. "You've told us we have to do a better job. We will do a better job."
Both plaintiffs attorneys and defense attorneys went to talk to the jury after the punitive damages verdict.
As the attorneys went into the anteroom to speak to the 12 jurors, one defense attorney said to another: "It's going to be painful. Suck it up." Littlepage said the jurors spoke directly to counsel for Wyeth and Upjohn and told them: "'You need to study your drugs. We felt you didn't want to know bad answers'" on an alleged causal link between HRT drugs and breast cancer and other ailments.
Plaintiffs attorneys said in interviews that there is little sign of any interest by Pfizer in settling the HRT claims.
"We are disappointed with the verdicts in these cases," said Pfizer spokesman Chris Loder in an e-mailed statement. "The company believes that neither the awards of punitive damages nor the liability verdicts were supported by the evidence or the law. We plan to challenge both decisions in post-trial motions and, if necessary, through an appeal."
Cancer has been found in Kendall's lymph node system and there is a 75 percent chance of recurrence, Littlepage said.
Kendall had mastectomies to remove both of her breasts in 2002 following her diagnosis with breast cancer, Kendall's plaintiff's pretrial memorandum said. Kendall took Wyeth's estrogen drug Premarin and Upjohn's progesterone drug Provera between October 1991 and 1998, and Kendall took Wyeth's Prempro combination drug of estrogen and progesterone between 1998 until her diagnosis of cancer in October 2002.
Kendall argued in her pretrial memo that timely testing and adequate warning would have prevented her breast cancer.
Barton said in her plaintiff's pretrial memorandum that she took Wyeth's HRT drug Prempro between May 1997 and May 2002. Barton underwent a left mastectomy and reconstructive surgery following her breast cancer.
Plaintiffs advanced theories of negligence, failure to warn of breast cancer risks in the drug labeling, fraud and willful conduct, the Barton and Kendall pretrial memos said. Upjohn and Wyeth raised a learned intermediary defense, the Barton and Kendall pretrial memos said.
Berezofsky said that, with more than 1,500 cases pending in the HRT mass tort program and little interest from Pfizer at this point in mass-scale settlements, cases are going to have to be consolidated for trial in order to get all the cases tried. It would take 100 years to try all 1,500 HRT cases when the cases take four to five weeks to try, Berezofsky said. A motion has been filed to consolidate for trial three cases that she is involved with and that are set for trial early next year.
Millrood, plaintiffs liaison counsel for the HRT program, said that consolidation of trials has been very cost-effective and efficient in mass torts cases. Many cases in the program are in a holding pattern because the Pennsylvania appellate courts haven't ruled on the statute of limitations question. Philadelphia Common Pleas Judge Sandra Mazer Moss, coordinating judge of the Complex Litigation Center, determined that the cases without a statute of limitations question should go to trial now, Millrood said. Moss decided that the first cases to be tried would be the earliest filed case from each of the 16 plaintiffs firms that have some volume of HRT cases, Millrood said.
Prior to Barton and Kendall there were only three HRT cases that got to trial in 2006 or 2007.
There were no trials during Judge Allan L. Tereshko's tenure as coordinating judge in the Complex Litigation Center, as Tereshko focused on legal rulings in many of the cases. The dismissal by Tereshko of many HRT cases because of the statute of limitations is pending in state Superior Court.
Although Moss lifted the seal on the punitive damages in the Barton case Monday, Moss decided to not lift the seal on the punitive damages award in the Daniel v. Wyeth case from 2007 because that case is on appeal to the state Superior Court and is outside of her jurisdiction, Berezofsky said. Pfizer filed an emergency motion Monday seeking to have the seal on the Daniel case sustained.
