A Philadelphia judge correctly instructed the jury in a hormone replacement therapy case that it had to decide if the drug Prempro was a factual cause in the plaintiff’s "development of … breast cancer," the state Superior Court has ruled.

Plaintiffs counsel — seeking a more broadly-worded instruction in the products liability trial over the effects of HRT in older female patients — had wanted the jury to be instructed by Philadelphia Court of Common Pleas Judge James Murray Lynn that it had to decide if Prempro was a factual cause of harm to the patient. The jury returned a defense verdict in Henry v. Wyeth.

Superior Court Senior Judge Gene Strassburger, writing for the panel that also included Judges Anne E. Lazarus and Paula Francisco Ott in an unpublished opinion issued February 22, said that a timely objection was not made to the jury instructions so the appeal of the issue is waived.

Even if the plaintiff’s counsel had not waived the objection, their client would not be entitled to a new trial, Strassburger said.

Appellate counsel for Frances Henry, Joseph A. Venti of Williams Cuker Berezofsky in Philadelphia, said during oral argument before the Superior Court that Lynn wrongly instructed the jury to determine on its verdict sheet if Wyeth’s Prempro was a "factual cause in the development of plaintiff Mrs. Henry’s breast cancer."

The jury could have thought that "development" meant that the plaintiff had to prove that Prempro brought her breast cancer into reality and from nothing to something, Venti said. The theory instead was that HRT promoted the plaintiff’s already-existing cancer.

"Henry’s suggestion that somehow the word ‘development’ misled or confused the jury as to the entire issue of causation is untenable. We also point out that [Henry's counsel, Texas lawyer Zoe Littlepage] repeatedly used the same terminology throughout her opening statement," Strassburger said.

For example, according to the opinion, Littlepage stated that "’hormone-dependent cancer is the kind of cancer that requires hormones to develop. … 70 to 80 percent of all breast cancers depend on hormones to develop and grow.’"

"It is disingenuous to say now that such terminology confused or misled the jury," Strassburger added.

Robert C. Heim of Dechert, who argued the case for Wyeth, said, "Nowhere [in the record] does very, very experienced trial counsel … say, ‘If you use the word "development" that it might be inconsistent with my theory.’"

The jury could not have been confused because Littlepage herself "equated promoting with developing" in her arguments to the jury, Heim said.

When Lazarus asked during oral argument if trial counsel acquiesced to the language and Ott asked if the appeal on the basis of the jury instructions was indeed waived if it was not objected to in the charging conference, Venti argued that Littlepage opposed it and that attorneys do not have to make mechanical recitations of objections.

"I disagree we acquiesced," Venti argued, saying that Littlepage stated, "Judge, we would ask you if you are going to do that, that you say was Wyeth’s drug Prempro a factual cause in the development of Mrs. Henry’s breast cancer" only after the trial judge had stated his planned verdict form questions and had overruled the plaintiff’s proposed language.

"This one wasn’t hard for the court. … This was how the plaintiff opened to the jury," Heim said in an interview. "Her theory all along was that Prempro was a factual [cause in the] development of plaintiff’s breast cancer."

Henry took Prempro from 1995 until May 2003, which is when she was diagnosed with breast cancer, according to the opinion.

Wyeth is now owned by drugmaker Pfizer.

Esther E. Berezofsky, another attorney with Williams Cuker, said the firm is reviewing its options.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the six-page opinion in Henry v. Wyeth, PICS No. 13-0449, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •