Hormone case retrial a go

LITTLE ROCK — A Little Rock woman got a green light Monday to proceed to trial - possibly next month - on her claims that a pharmaceutical company owes her punitive damages because its hormone therapy drugs caused her breast cancer.

In refusing to hear a pharmaceutical company’s appeal of an 8th U.S. Circuit Court of Appeals ruling imposed in November, the Supreme Court paved the way for Donna Gail Scroggin, 69, to return to federal court in Little Rock so a jury can decide whether she should be paid punitive damages, and if so, how much.

In 2008, a federal jury awarded Scroggin $2.75 million in compensatory damages, finding Wyeth Pharmaceuticals and Upjohn liable for inadequately warning of known or knowable risks of breast cancer associated with taking their estrogen and progestin drugs to combat symptoms of menopause.

The same jury also ordered the companies to pay Scroggin a total of about $27 million in punitive damages - $19.36 million by Wyeth and $7.76 million by Upjohn.

But three months later, in July 2008, U.S. District Judge Bill Wilson Jr., who presided over the trial, decided that he should never have allowed certain testimony from plaintiffs’ witnesses, and threw out the punitive damages.

The plaintiffs appealed to the 8th Circuit, based in St. Louis, which on Nov. 2 upheld the compensatory award and Wilson’s decision to dismiss the punitive award against Upjohn, but reversed his dismissal of the punitive award against Wyeth. The appellate court remanded that issue back to Wilson’s court for a new trial on punitive damages.

The new trial focusing on punitive damages against Wyeth was scheduled to begin July 20, until Pfizer Inc. appealed the 8th Circuit decision to the U.S. Supreme Court, putting the case on hold. Both Wyeth, the maker of an estrogen drug called Premarin and a combination estrogen-progestin drug called Prempro, and Upjohn, the maker of an estrogen drug called Provera, are now owned by Pfizer Inc.

Wilson then scheduled a case called Hill v. Wyeth to take that trial slot, but the Hill case soon settled. Wilson, determined to take advantage of an open spot on his calendar to hear one of the thousands of pending hormone therapy cases still pending, then placed a case originally filed in Pennsylvania by Becky Ferrera in the July 20 slot. Attorneys for both sides have been asking Wilson to put off the Ferrera case, saying they need more time to prepare.

Attorney Ralph Cloar of Little Rock, a member of the plaintiffs’ steering committee, said the committee asked Monday that the Scroggin case be placed back on the July 20 calendar.

Wilson had not ruled on that request by day’s end.

Wilson oversees consolidated pretrial matters for thousands of pending hormone therapy cases across the country. Erik Walker, an Austin, Texas, attorney who represents the plaintiffs, said Monday that there are now about 12,000 lawsuits that have been filed over the drugs. He said Wilson has been releasing cases to other judges to be set for trial across the nation.

Asked about the effect of the U.S. Supreme Court’s refusal Monday to take up the Scroggin appeal, Walker, said, “We’re very pleased with the decision. It means, at least in Donna Scroggin’s case, that the compensatory damage award is hers, and they can’t take that away.”

It also means that Scroggin will have another crack at punitive damages.

Christopher Loder, spokesman for Pfizer, released this statement Monday from the company’s New York offices about the Supreme Court’s action:

“While we are disappointed with the Court’s decision, it does not change the prior ruling by the Appeals Court which affirmed the dismissal of the punitive damages as to Upjohn and ordered a new trial on punitive damages for Wyeth. The plaintiff ultimately must prove at this trial that punitive damages, which have already been denied against Upjohn, are warranted against Wyeth.The company is fully prepared to present its defenses.”

The statement continued, “We continue to believe that Wyeth and Pharmacia & Upjohn acted responsibly by conducting or supporting more than 180 studies on hormone therapy’s benefits and risks, keeping the U.S. Food and Drug Administration fully informed, and providing proper, accurate and science-based information to patients and doctors. Hormone therapy remains a very important treatment option for many women with debilitating symptoms of menopause.”

Scroggin took hormone drugs for 11 years, starting in 1989. She was diagnosed with cancer in both breasts in 2000, and had to undergo a double mastectomy. Two years later, the National Institutes of Health published the results of its Women’s Health Initiative study, which linked the use of hormone therapy to breast cancer.

Scroggin’s case was the first to reach the appellate level that addressed whether the companies’ hormone therapy drugs caused breast cancer and looked at the drug companies’ defenses.

“The defendants have raised a number of defenses,” Walker said after the 8th Circuit ruling. “The 8th Circuit considered each one of those issues and found against them. We think that is significant for the whole litigation.”