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A woman who sued Wyeth Pharmaceuticals, claiming that the hormone-replacement therapy she took was the cause of her breast cancer, is barred by the two-year statute of limitations from bringing a personal injury claim, a Philadelphia Common Pleas judge ruled yesterday.

In his opinion in Coleman v. Wyeth, Judge Allan L. Tereshko ruled that the statute of limitations for Elizabeth Coleman’s claim was not tolled under the discovery rule, which Coleman argued allows for a delay in filing if the plaintiff did not immediately know the cause of the injury.

“Coleman argues that the sine qua non for triggering the running of the statute of limitations in Pennsylvania is a requirement that plaintiff know of a definitive association between her injury and the hormone therapy she received,” Tereshko said. “That has never been the law in Pennsylvania.”

Tereshko said the clock on the statute of limitations begins when a plaintiff discovers that she is injured, not when she figures out what caused the injury.

“Here, there is no dispute that damage was ascertainable when Coleman was diagnosed with breast cancer,” he said. “Therefore, Coleman’s statute of limitations began to run on that date.”

As hormone replacement therapy (HRT) cases have become recognized by litigators and judges as a hotbed of litigation in the common pleas court’s Complex Litigation Center, Tereshko’s ruling could affect hundreds of cases.

“In order to toll the two-year statute of limitations, plaintiff must show that she made a reasonably diligent effort to obtain information regarding her injury and why it was unobtainable at that time,” Tereshko said. “This court finds that not only did plaintiff not undertake a diligent investigation of the causes of her injury, but that she undertook no investigation whatsoever.”

Coleman had taken hormone replacement therapy drugs from 1991 until she found out she had breast cancer on Oct. 20, 2000. Wyeth and Pharmacia & Upjohn – another defendant in the case – manufactured some of the drugs she took during that time, according to the opinion.

Coleman filed her suit against the companies on June 28, 2004, after she read the results of the Women’s Health Initiative Study in July 2002 that looked at the benefits and risks of HRT, Tereshko said.

The judge wasn’t convinced, however, pointing out several examples starting in 1997 of published media reports that showed a link between HRT and breast cancer.

Coleman said she was not told by any of her doctors at the time she was diagnosed that HRT could have played a causal role, he said.

“Nonetheless, it is clear from the record that at the time of her injury, both Coleman (and her doctors) had sufficient information about the increased risk of breast cancer associated with HRT to ‘begin doing those things for which the statute of limitations specifically provides time,’ such as investigating the basis for her claim,” Tereshko said, citing the 1986 Superior Court ruling in Groover v. Riddle Memorial Hospital.

He said he found it “significant” that Coleman did not think to link the HRT to her breast cancer when her doctors told her to stop taking it at the time of her diagnosis in fear of spreading the illness.

“This court finds, however, that the instructions of Coleman’s doctors to discontinue the HRT after her diagnosis put her on notice of a link between the drug and her cancer,” he said.

Tereshko also pointed out that the study upon which Coleman relied showed a lower risk of breast cancer for women on HRT than previously thought at that time.

Tereshko likened Coleman’s situation to that of the sexual abuse victims in Meehan v. Archdiocese of Philadelphia, in which the plaintiffs argued that new harm was created by the church’s cover up of sexual abuse by priests and should therefore toll the statute of limitations.

As the court did in Meehan, Tereshko dismissed Coleman’s suit as untimely and granted Wyeth’s summary judgment.

Kenneth M. Rothweiler of Eisenberg Rothweiler represented Coleman in the case and he said he is confident the Superior Court would overturn Tereshko’s ruling. He said many women have come from across the country to try similar cases in Philadelphia.

“We are disappointed that the court acted as the fact finder when ruling on a motion for Summary judgment,” Tereshko said in an e-mail. “The opinion represents a departure from the rulings of several Common Pleas Court judges who have ruled differently in the past.”

Rothweiler said Coleman is the first decision to find that the plaintiff is not protected under the discovery rule.

Several of the defense attorneys on the docket were not immediately available for comment by the time of publication.

(Copies of the 26-page opinion in Coleman v. Wyeth , PICS No. 07-1485, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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