The state Supreme Court has decided against taking up two hormone-replacement therapy cases involving the drug Prempro and whether it caused breast cancer, letting stand an $11.2 million verdict against Wyeth Pharmaceuticals in one and a defense verdict in favor of the drugmaker in another.

The justices denied allocatur in Barton v. Wyeth Pharmaceuticals and Henry v. Wyeth Pharmaceuticals on October 16.

In Barton, plaintiff Connie Barton was prescribed Wyeth’s Prempro from 1997 to 2002, when she was diagnosed with breast cancer, according to court documents.

Barton had to undergo a modified left breast mastectomy and a plaintiffs expert opined she had a 10 percent chance of recurrence of her breast cancer, court documents said.

A jury awarded $3.7 million in compensatory damages and $75 million in punitive damages in October 2009 after a reverse bifurcation trial, but Philadelphia Court of Common Pleas Senior Judge Norman Ackerman remitted the punitive damages award to $5.62 million.

On appeal, however, the Superior Court remitted the punitive damages award to $7.49 million, resulting in a total award of about $11.2 million.

The Superior Court’s remittitur resulted in a 2-1 ratio between punitive and compensatory damages, said Judge Kate Ford Elliott, who penned the opinion.

The court applied Illinois law in the case.

Under Illinois law, punitive damages are reviewed in the context of the “‘nature and enormity of the wrong, the financial status of the defendant and the defendant’s potential liability,’” Ford Elliott said.

Ford Elliott also said that “it is true, as Barton argued in the lower court, that the jury’s award of $75 million in punitive damages represents just .39 of 1 percent of Wyeth’s overall net worth. However, it is equally true that due to thousands of lawsuits filed across the country by plaintiffs who allegedly contracted breast cancer as the result of ingesting Wyeth’s HRT drugs including Prempro, Wyeth faces an enormous potential liability for its conduct. This factor clearly militates in favor of remittitur. If Wyeth were to face punitive damages in the range of $75 million in every case in which the plaintiff prevails, it would soon be driven into bankruptcy.”

In Henry, the state Superior Court previously ruled that a Philadelphia judge correctly instructed the jury in terms of causation in the case, despite assertions to the contrary by plaintiff Frances Henry’s counsel.

“The Superior Court agreed that the instruction was fine, so it’s not a surprise to me that the Supreme Court denied allocatur,” said Wyeth’s counsel, Robert C. Heim of Dechert.

Appellate counsel for Henry, Joseph A. Venti of Williams Cuker Berezofsky in Philadelphia, declined to comment on the Supreme Court’s decision.

The Legal previously reported that 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 the case.

Superior Court Senior Judge Eugene Strassburger III, 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.

Venti 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.

Heim 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 a February 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.

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI. •

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.