After more than six hours of deliberation, a Philadelphia jury unanimously returned a defense verdict Wednesday in a lawsuit alleging that a hormone replacement therapy drug caused breast cancer in an Indiana woman who died of the disease.
The verdict in favor of drugmaker Wyeth came because the jury found a lack of factual causation of Cheryl Foust's disease by her use of the HRT drug Prempro.
The defense in Foust v. Wyeth, however, did not get all of the answers it wanted on the questions presented to the jury.
The jury found that Wyeth negligently failed to adequately warn Foust's prescribing nurse practitioners about the risk of Prempro, and that the negligent failure to warn was a causation factor in the nurse practitioners prescribing Prempro to Foust.
In an unusual aspect of the case, Foust's identical twin sister, Carol, took an HRT drug but did not get breast cancer. Both the plaintiffs and the defense sought to use Carol Foust's lack of cancer to their advantage in making arguments to the jury.
"The fact the jury failed to find specific causation is difficult to understand," said plaintiffs attorney James A. Morris Jr. of the Morris Law Firm, which has offices in Philadelphia and Austin, Texas.
Morris said the verdict doesn't change the fact that Prempro causes breast cancer and he welcomed the jury's finding that Wyeth failed to adequately warn of the breast cancer risks of Prempro.
Wyeth, now owned by Pfizer, said in a statement: "While we have great sympathy for Mrs. Foust's family, we believe the facts in this case confirm our position that Wyeth acted responsibly by conducting or supporting more than 180 studies on hormone therapy's benefits and risks, and provided proper, accurate and science-based information to the patient and her doctor, who made an informed decision to proceed with this treatment. Many risk factors associated with breast cancer have been identified, but science cannot establish what role any particular risk factor or combination play in any individual woman's breast cancer."
The jury started deliberations Tuesday. Philadelphia Common Pleas Senior Judge Esther R. Sylvester presided over the almost four-week trial.
The verdict disrupts the streak of plaintiffs' wins before Philadelphia Common Pleas juries in hormone replacement therapy mass tort cases.
Philadelphia juries have awarded as much as $75 million in punitive damages in the other HRT cases. The $78.7 million damages award in Barton v. Wyeth was remitted by Senior Judge Norman Ackerman to $10.6 million, but Ackerman found that it was reasonable for the jury to find Wyeth, now owned by Pfizer, wantonly negligent.
The verdict in Foust comes on the heels of a jury verdict Monday in Singleton v. Wyeth in which a jury found Wyeth liable for $3.45 million in compensatory damages and $6 million in punitive damages for an Alabama plaintiff's injuries.
Except the just-returned Singleton verdict and one other plaintiff's verdict awaiting a trial judge's decision on a $28 million punitive damages award and other post-trial motions, the other plaintiffs' verdicts have headed to the appellate courts or are pending in the appellate courts. Three of those plaintiff verdicts were later set aside by judges.
Of the more than 1,500 HRT cases pending in Philadelphia, fewer than 10 have gotten to trial so far.
Foust, of Abington, Ind., died at 56 after her breast cancer metastasized. Foust's widower, Stephen Foust, was also a plaintiff in the case.
Plaintiffs' counsel said Foust took Prempro, Wyeth's drug combining estrogen-progestin, a synthetic form of progesterone, from 1999 to 2003, while defense counsel said prescription records only established that Foust took Prempro for two years and two months.
The plaintiffs' theory was that postmenopausal women like Foust with already-damaged breast cells have the growth of their damaged cells fueled into malignant breast cancer by taking hormone replacement therapy drugs, according to arguments. During closing arguments Tuesday, Morris argued that Foust had her estrogen and progesterone hormonal levels go down dramatically, and that it is only because of the ingestion of a hormonal drug like Prempro that Foust's breast cells with receptors for estrogen and progesterone turned into cancer.
Defense counsel Beth A. Wilkinson, of Paul Weiss Rifkind Wharton & Garrison's Washington, D.C., office, said during her closing Tuesday that plaintiffs did not present "good science" about the state of knowledge regarding the development of cancer. The plaintiffs had no evidence that a normal cell can be turned invasive, or malignant, by hormone therapy, Wilkinson said. Foust had an "incredibly aggressive tumor," Wilkinson said.
During closing arguments, Morris said that when evaluating the alleged negligence by Wyeth, the jury should consider that there were many indications starting in the 1970s that there may be an increased breast cancer risk from using Wyeth's hormonal drugs. And Wyeth did not sponsor its own studies of the possible breast cancer risk and Wyeth downplayed the research concluding there was a serious risk, Morris said.
It was not until the release of the news that a government-sponsored study, the Women's Health Initiative, was being discontinued in 2002 because of an increased risk of breast cancer from using HRT that there was an answer to the question of whether HRT raised the risk of women getting breast cancer, Morris said.
All three of Foust's nurse practitioners testified that their perception of the risks of HRT changed after the release of the WHI, Morris said. And Foust said that she would not have taken HRT if she had received information from her nurse practitioners about how the risk-benefit calculation changed regarding HRT following the release of the WHI results, Morris said.
Foust talked year in and year out with her treating nurse practitioners about the risks and benefits of HRT, Wilkinson said in her closing.
Defense counsel also include, among others, F. Lane Heard III of Williams & Connolly's Washington, D.C., office.
Cohen & Malad in Indianapolis, Ind., also is plaintiffs' counsel.