With so much focus on preemption recently, it seems like one of the only things that can make a plaintiff’s lawyer happy right now is news of a big verdict.
As reported in the March issue of Mealey’s Litigation Report: Hormone Replacement Therapy, the federal jury presiding over the third trial in the Prempro multidistrict litigation awarded almost $30 million ($29.8 million to be exact) to a breast cancer patient, $27.1 million of which was in punitive damages. In October, a state court jury ordered Wyeth, the maker of Premarin and Prempro, to pay three women $134 million based on their development of cancer after using hormone replacement therapy. Originally, $99 million of that award was in punitive damages. The judge presiding over that case recently cut that award down to $58 million after finding that the jury’s “passion and prejudice” got in the way of their thinking.
What strikes me is that four earlier HRT trials in
Pennsylvania ’s Philadelphia County Court of Common Pleas ended in $1 million to $3 million compensatory damages awards to plaintiffs. So, what’s happened in the past year or so that has led to such big plaintiffs verdicts?
Here are a few ideas.
The first is that possibly it has just been a matter of “practice makes perfect” for plaintiffs’ attorneys, who are becoming better at getting their point across to juries. I’m by no means implying that defense counsel aren’t getting better too. Wyeth won both previous Prempro MDL trials, has had all of those Philly HRT verdicts wiped out, is in the process of appealing the
Nevada verdict and has already said that it will appeal the most recent MDL verdict.
The other factor that may be leading to bigger verdicts is the influx of studies indicating that HRT use is associated with an increased risk of cancer after as little as three years of use and that the cancer risk can continue for up to three years after discontinuation. The former study, written by Dr. Christopher Li and his colleagues from the
Fred
Hutchinson
Cancer
Research
Center in
Seattle, was referenced in the recent Prempro MDL trial.
What do you think? Are there other factors leading to such big awards? Have actions (or inactions) by the Food and Drug Administration had an affect on jurors? Are the increasing studies indicating an increased cancer risk adversely affecting how juries view the companies’ conduct?
While these most recent awards will undoubtedly come down a bit (if not totally) at some point down the road, it will be interesting to see if the trends continue with trials coming up in Louisiana and Kentucky state courts in April.