By Justin Rebello – April 7, 2008
A federal jury in Little Rock, Ark., awarded $27 million to a woman who developed breast cancer after using a combination of hormone replacement drugs, Prempro and Premarin, produced by Wyeth Pharmaceuticals. The suit also named Upjohn Co., which manufactures a similar product called Provera.
Donna Scroggin of Little Rock was diagnosed with breast cancer in 2000, following her use of Provera to treat symptoms of menopause. Scroggin began taking the Prempro drug in 1989, and switched to the combination therapy in 1996.
After being diagnosed with invasive cancer in both breasts, Scroggin underwent chemotherapy and a double mastectomy.
She brought suit after the Women’s Health Initiative issued its watershed study in 2002 that concluded that women who took the estrogen-progestin combination faced a 24 percent higher risk of developing breast cancer.
More than 6 million women have taken the medication.
According to plaintiffs’ attorney Jim Morris of Austin, Texas, the trial was a rare multi-district litigation success in Arkansas. He attributed the victory to the investigative work he was able to conduct during an expanded discovery process.
“We discovered new documents and painted a clearer picture of how Wyeth went about dismissing the cancer reports that had existed for decades,” said Morris.
Wyeth plans to appeal the verdict.
Defense attorney Lyn P. Pruitt of Little Rock did not return phone calls seeking comment.
The ‘frightening’ facts
Scroggin’s case marks the second time in less than a year that Wyeth has been ordered to pay punitive damages in connection with the Premarin/Prempro combination. In October, a Nevada jury awarded $134.5 million to three Reno women who claimed the drugs caused their breast cancer. That award was cut in February to $58 million.
The key element in both failure-to-warn claims was the use of Wyeth’s internal documents to expose the lengths the company would go to conceal the risks the medication posed to patients.
Irving Kuperman, the doctor who prescribed the medication to Scroggin, testified that he did not appreciate the cancer risk, because the label was confusing and because he trusted the medication based on articles in medical journals, including the American Journal of Obstetrics and Gynecology, which preached the safety of the drug.
But, Morris argued that several of these articles were ghostwritten by Wyeth. Using the company’s own documents, he drew a connection between Wyeth and a publishing company called Design Right, which employs “English majors, not physicians” to rewrite technical articles provided to them by other sources.
“The fact that a physician could prescribe this drug and not even know the nature of it is frightening,” said Morris.
John Eaton, who wrote the article in question, and Karen Mittleman, an employee of Design Right, testified that the article was ghostwritten.
Arkansas a challenge
Wyeth has lost four of the seven Prempro cases that have gone to trial since 2006 and there are nearly 7,000 cases still pending.
Despite a series of recent plaintiffs’ verdicts, Arkansas has proved to be a difficult venue so far. Less than a month before the Scroggin verdict, the 8th Circuit upheld a defense verdict for Wyeth in a case brought by Helene Rush, a Little Rock woman who was diagnosed with breast cancer after taking the company’s hormone replacement therapy. Rush v. Wyeth, 514 F.3rd 825 (Jan. 31, 2008)).
The defense contended Rush’s cancer was caused by genetic factors and other health risks such as weight gain and smoking.
Wyeth used a similar defense in the Scroggin trial, but Morris contended that the family history was irrelevant and the real issue was the unclear warnings provided to physicians and their patients, citing Dr. Kuperman’s testimony.
Naming Upjohn as a defendant
Another significant difference between the Scroggin and Rush cases was the inclusion of Provera-maker Upjohn in the complaint.
The tactic was previously used in a Philadelphia case, Simon v. Wyeth. That case went to trial in January and produced a $1.5 million verdict, which was overturned by a Superior Court judge.
“[Upjohn] has significant liability in this case,” said Morris. “They believed this would not be a significant litigation for them because everything in initial discovery focused on Wyeth, and most women took Prempro rather than combination therapy.”
But Morris argued the combination therapy is used because it possesses higher levels of the Prempro product.
Following four weeks of trial and a little over a day of deliberations, the seven-man, five-woman jury returned a $27.1 million award for Scroggin. Jurors awarded $2.75 million in compensatory damages, which will be split 50/50 between Pfizer and Wyeth. As for punitive damages, Wyeth will pay $19.3 million and Pfizer will pay $7.7 million.
Morris expects plaintiffs will continue to succeed in cases against Wyeth, provided they are given adequate time for discovery.
“Wyeth needs to start coming to the table and settling cases reasonably,” he said. “This is as strong a case medically as I’ve seen – and I’ve been in the mass tort business for over twenty years.”