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$3 Million Verdict Tossed in Hormone Therapy Case

Asher Hawkins
The Legal Intelligencer
June 4, 2007

Philadelphia's juries seem to be persuaded by the arguments presented by hormone therapy litigation plaintiffs in their products liability actions against a locally based pharmaceuticals giant, but the city's judges don't.

A ruling Wednesday by Philadelphia Common Pleas Senior Judge Ricardo C. Jackson granting the defense judgment NOV in Nelson v. Wyeth means that the first hormone therapy case to reach trial in the city's Complex Litigation Center has effectively ended with a Wyeth victory despite a sizable jury award in favor of the plaintiffs.

The February jury in Nelson had announced a unanimous verdict in favor of Jennie and Lawrence Nelson of Dayton, Ohio, awarding Jennie $2.4 million, with the remaining $600,000 going to her husband.

According to attorneys involved in the case, Jackson decided after the plaintiffs had rested that the jurors wouldn't be permitted to consider punitive damages.

At about the same time, a colleague of Jackson's presiding over the Complex Litigation Center's second hormone therapy trial also concluded that punitive damages weren't warranted in that action, captioned Daniel v. Wyeth. That trial ended in late January with a $1.5 million compensatory damages verdict for that case's wife-and-husband plaintiffs, who are natives of Hot Springs, Ark.

The hormone therapy cases generally involve claims that prescription drug treatment for women's menopausal problems -- such as the Wyeth drug Prempro, a combination of estrogen and progestin -- led to breast cancer and/or other serious health problems.

This winter's proceedings in Nelson marked the second attempt to try that case.

The first Nelson jury had concluded in October 2006 that Wyeth, if found liable during the second phase of that reverse-bifurcated litigation, would have to pay the plaintiffs $1.5 million.

At one point, it seemed as if a mistrial in those proceedings might be declared post-verdict after the court learned that one juror had threatened another with a detached table leg during deliberations.

But ultimately, Senior Judge Norman C. Ackerman -- the former head of the CLC -- made the decision to have a second go-around in 2007 when counsel for Wyeth revealed that one juror had failed to disclose a felony theft conviction during voir dire.

In the meantime, Daniel, the CLC's second hormone therapy trial, ended with a $1.5 million compensatory damages verdict for that case's plaintiffs. That trial was not reverse bifurcated, but was split into compensatory and punitive damages phases.

However Senior Judge Myrna P. Field -- who died in April at the age of 71 -- disagreed with the Daniel jury's conclusion that punitive damages were warranted in the case and went on to seal that jury's noncompensatory damages award. Field held that that award can be unsealed if an appellate court reverses her and sides with the jury on the punitive damages issue.

Recent docket entries in Daniel indicate that the punitive damages issue has been appealed and that Judge Allan L. Tereshko, the new head of the CLC, is overseeing post-trial litigation in that case.

Just weeks after the Daniel trial ended, the Nelson re-trial's nine-member panel -- which included three women -- went on to deliberate as to compensatory damages only, following a roughly monthlong re-trial.

In orders dated Wednesday, Jackson granted a Wyeth motion for JNOV as to causation, and also denied the plaintiffs' post-trial motion seeking a new trial as to punitive damages.

Tobi Millrood of Schiffrin Barroway Topaz & Kessler in Radnor, Pa. -- the Nelsons' attorney, and plaintiffs-side liaison counsel for the CLC's hormone therapy program -- said his clients will be appealing Jackson's ruling.