Mass Tort Litigation Blog

Mass Tort Deals: A Response to Ellen Relkin and an Open Invitation

Since I published Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation last May, I’ve received a lot of private emails from lawyers in the trenches who agree with my diagnosis of the problems in MDL. As the book details, incentives within multidistrict litigation tend to skew toward insiders’ self-interest, not the public interest or plaintiffs’ interests. Left unchecked, self-interest can takeover. And there are no checks. Consequently, there is an urgent need to improve the mass-tort system and its inhabitants as a whole.

Of course, in writing the book, I knew there would be backlash, particularly from those ensconced within the system who have much to lose from any change in the status quo. And judging from the latest review of my book on Amazon, it appears I’ve struck a nerve.

It comes from Ellen Relkin, a plaintiffs’ lawyer who served as co-lead counsel in DePuy ASR; lead and liaison counsel in Stryker; and on the court-appointed executive committee in Ortho Evra, Yasmin/Yaz, and Biomet.

To begin, I’d like to thank Ms. Relkin for taking time to review the book.  I hope very much that it will lead to a dialog and a broader exchange of information, not just between the two of us, but between academics and practitioners more broadly.  As my mentor, Richard Nagareda, impressed upon me, ours is a field that is driven deeply by what judges and lawyers do in real time, on the ground, not by what academics say to one another in lofty towers.

It was with that in mind that I began writing what eventually became Mass Tort Deals, which Relkin colorfully dubs a “book parading as empirical research.” It is the culmination of six-years worth of data collection on all the products-liability proceedings pending on the MDL docket as of May 2013, and its Appendix boils down all of that data into 41 pages of tables. All of the documents that I collected are freely available to the public and word searchable here.  Whether you love, hate, or are completely indifferent to the book, you are welcome to make use of all of the data and documents without having to pay Pacer fees.

What to make of the data is, of course, open to various interpretations.  Mass Tort Deals reflects my conscious choices both about how to present data in an inviting, accessible way, and which case studies and anecdotes might best convey key points. Those choices are based not only on the raw numbers (which are all disclosed), but on many hours of interviews with attorneys and judges as well as reading hundreds of motions, arguments, and court transcripts. Lawyers and judges who lived those proceedings will, invariably, have different opinions about their strengths and weaknesses, as Relkin’s critique demonstrates.

That brings me to Relkin’s specific comments, which I respond to briefly below:

• “The book is biased.”

Unfortunately, I’m not sure what this means. I don’t represent any clients, I don’t consult for lawyers on either side, and my funding comes entirely from my university (no private grants, etc.). I do have a perspective and an opinion from doing extensive research, but I am about as neutral as they come. As Relkin notes, on the other hand, she served as lead counsel in some of the mass tort deals that I criticize and, one presumes, has profited substantially from them.

• “[T]he book criticizes and makes incorrect assumptions without ever interviewing the lead counsel . . .”

As noted, I did speak with a number of plaintiffs’ attorneys on background (including those in DePuy ASR).  Those lawyers asked not to be named for fear of retribution, which I describe in Chapter 3. Lance Cooper was the sole attorney who agreed to be interviewed “on the record.” Unlike the lawyers affected by, but not in control of the proceeding, lead lawyers’ positions tend to be apparent from reading the motions that they file and the arguments they make in a hearing’s transcripts.

Despite putting these proceedings under a microscope, however, some critical information just isn’t publicly available, as I note in the book’s Introduction.  The terms of most private settlements remain private, and even for those that are publicly available, it is rare indeed to find information on substantive outcomes—who gets what, in other words.

More frustrating still are the many sealed documents. (Reuters has echoed this same frustration in a series of articles on opioids and Propecia.) DePuy ASR was a particularly opaque proceeding in that regard. The leaders, for example, sealed their common-benefit fee and cost awards (motions, orders, etc.).  Why insist on secrecy in court-awarded attorneys’ fees?

This is one of the key concerns that I address in Mass Tort Deals: too little disclosure can lead to too much room for abuse of process.  The information that is available suggests that there is a systemic lack of checks and balances in MDLs that may benefit insiders like lead plaintiffs’ attorneys, at their clients’ expense. In short, proceedings should be more transparent—deciding issues in secret breeds mistrust.

To that end, if you have data on substantive outcomes (who, exactly, gets what), please share it with me. I would love to know more about how much money is paid out and to whom, how long it takes to administer claims, whether like plaintiffs are treated equally, how much money it costs to put dollars in class members’ hands versus plaintiffs in private settlements, etc.

• “The book overlooks litigation challenges in some of the cases including the enormous costs of trying complex pharmaceutical and medical device cases, especially those with mild to moderate injuries, general and specific medical causation challenges, preemption issues, learned intermediary challenges, among other difficulties in some cases.”

Relkin is correct in that this book is about the procedures used to resolve cases, not substantive tort law. But to the heart of her concern, I discuss costs on pages 24-25, general and specific causation on pp. 112, 116, and 210. And I emphasize the pros and cons of bellwether trials on pp. 107-110.

• “Ms. Burch incorrectly attributes lead counsel in the DePuy ASR settlement, incorrectly interprets and describes features of the settlement, overlooks an enormous and virtually unprecedented benefits of the settlement . . ., incorrectly claims that the Extraordinary Injury Fund awards were unknown when in fact the scheduled award amounts were listed in an appendix to the settlement agreements that have been and are still on-line, among other errors.”

The only concrete thing I can find to respond to here is Relkin’s claim about the Extraordinary Injury Fund.  As I observed on p. 140, the DePuy ASR settlements did estimate a claimant’s base award, but even after another search of the settlement’s website, I still don’t see any amounts actually paid out to clients listed anywhere.  Of course, it’s certainly possible that I’ve missed something.  So, here’s a link to the website if you’d like to dig in. 

• “The two unhappy clients she quotes from a New York Times article are certainly not a representative sample. Using that standard, one could go on ‘Rate My Professor’, and while finding many good reviews of Professor Burch, would find some students who gave her unfavorable ratings.”

Okay, I couldn’t resist. It appears the last posting I received on “Rate My Professors” was in 2011 and of the 8 total posts, I received 7 “Awesome’s” and 1 “Good” (which still wrote “Great prof”). (Personally, I’m partial to the one that said “Amazing teacher. Funny, pretty, witty, and just downright brilliant,” but hey, maybe I am biased.)

More to the point, writing the book did make me realize that I needed to hear directly from plaintiffs, hence the Procedural Justice Study that I began over a year ago. 

Relkin kindly mentions that “she would have been happy to share the many thank you notes from enormously grateful clients who fared very well,” so I hope that she and other plaintiffs’ lawyers will ask their Yasmin/Yaz and Ortho Evra clients to participate in the Procedural Justice Study as well as any clients they might have in the other covered women’s health proceedings: Pelvic Mesh, Talcum Powder, Mentor ObTape, Mirena, Norplant, Fen-Phen, Dalkon Shield, NuvaRing, Silicone Gel Breast Implants, Power Morcellator, Ephedra, Fosamax, Monat Hair Care, Rio Hair Naturalizer, Prempro, and Protegen Sling.

Please disseminate the survey link broadly to your clients; I absolutely want to hear from all of them.  By way of background, the study does not ask for any confidential information (settlement or otherwise); the basic info it seeks include things that plaintiffs can readily find in their complaint.  The study’s focus is on how plaintiffs feel about their experience with the justice system—the judges, the lawyers, etc. 

My aim in this is to update and expand upon RAND’s 1989 Perception of Justice survey by identifying what litigants care about in the MDL context.  I hope to hear from as many plaintiffs as possible (their names and any identifying information will be kept completely confidential).

Happy to hear from each of you, too. And if there are things I should know more about, consider this an open invitation to contact me.

Are you a plaintiff involved in a women's health mass tort? Or do you know people who are?

Today's post is really a plea for help with a new project that I've just started.  I've created a new survey that allows plaintiffs to tell me about their interaction with the court system and their attorneys.

I’m hoping to hear directly from plaintiffs who are involved in women’s health mass torts like pelvic mesh, breast implants, NuvaRing, Mirena, and Yasmin/Yaz. 

If you're a plaintiff involved in one of those cases, please consider taking this short survey.  It will ask you questions about whether you had opportunities to tell your side of the story and present evidence, how you felt your lawyer handled your case, how you felt about the process and your outcome, and whether you used third-party funding.

If you're a lawyer or reporter, I'd love your help publicizing the project. Participants' answers will be kept completely confidential, and I am not asking for details that would be covered by a confidentiality provision in a settlement.  

I am not affiliated with the courts or with the lawyers on either side in any way and I do not have any clients of my own.  I don’t consult for any of the lawyers in these cases, and all of my funding comes from the University of Georgia—not from a private company or interest.  In other words, I have no financial ties that affect the way I conduct my research.

Here's more information about me and the research I am doing: https://www.elizabethchambleeburch.com/womens-mdls

If you have questions, please feel free to contact me--if confidentiality is important, please use [email protected] rather than my University of Georgia email.  

Repeat Players in Multidistrict Litigation

As our readers surely know, despite its bulky name, multidistrict litigation (“MDL”) is in the news constantly: litigation over Volkswagen's defeat device, GM’s ignition defect, Toyota’s sudden acceleration, asbestos, and medical drugs and devices (pelvic mesh, Yasmin/Yaz, NuvaRing, Vioxx) are just a few of the higher profile MDLs.

MDL now comprises over 36% of the entire federal civil caseload (that number leaps to 45.6% if you exclude social security and prisoner cases), yet courts and Congress have made it more difficult for these cases to proceed as certified class actions. This litigation doesn’t go away without class certification as many tort reformers believe, it simply persists with far less judicial oversight.

Few rules and little appellate oversight on the one hand, plus multi-million dollar “common-benefit fees” for the lead lawyers who shepherd these cases toward settlement on the other may tempt a cadre of repeat attorneys to fill in the gaps in ways that further their own self interest. (Because there are so many cases involved, judges appoint "lead lawyers" to litigate and negotiate on behalf of the entire group of plaintiffs; if their individual attorney isn’t a lead lawyer, then that attorney has little say in how the litigation is conducted.)

To shed light on some of these issues, my co-author, Margaret Williams, and I have posted a revised version of our paper, Repeat Players in Multidistrict Litigation: The Social Network (forthcoming, Cornell Law Review) on SSRN.  

We collected data on who the lead attorneys are (plaintiff and defense side) in all product-liability and sales practice cases that were pending on the MDL docket as of May 2013 (those cases covered a 22-year span), built an adjacency matrix, and employed a two-mode (actors and events) projection of a bipartite network (also known as an affiliation network) to graph the ties between lawyers judicially appointed to leadership positions (the actors) in multidistrict proceedings (the events).  (For the non-statistically inclined, this social network analysis is somewhat akin to the kind that Facebook has popularized.)

The point was to reveal what the naked eye cannot see: how those attorneys and MDLs connect to one another. (Detailed, searchable PDFs of the social network with the players and litigations are available here). We also collected data on the publicly available nonclass settlements that repeat players brokered, reviewed news and media accounts of those litigations, and analyzed the common-benefit fees awarded to the lead plaintiffs' lawyers.

Here’s a summary of our key findings:

• Repeat players are prevalent on both the plaintiff and the defense side.

• No matter what measure of centrality we used, a key group of 5 attorneys maintained their elite position within the network.These 5 attorneys may act as gatekeepers or toll takers, for example. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way.  

• By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a 22-year span, we were unable to find any deal that didn’t feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome.

• Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the rules they develop may principally benefit them at the plaintiffs’ expense.

A highly concentrated plaintiff and defense bar is nothing new, nor is the disquiet about where that concentration may lead. As scholars have long recognized, repeat play tends to regress our adversarial system from its confrontational roots toward a state of cooperation.

In the criminal context, prosecutors and public defenders routinely work together through plea bargaining, leading them toward mutual accommodation; incumbents form a primary community of interest, whereas clients present secondary challenges and contingencies. As such, adversary features are often overshadowed by regulars’ quid pro quo needs. As Professor Jerome Skolnick has explained, those working group relationships become a social control problem only once they reach a “tipping point where cooperation may shade off into collusion, thereby subverting the ethical basis of the system.” (Social Control in the Adversary System, 11 J. Conflict Resol. 52, 53 (1969)).

As I’ve argued in a separate article, Monopolies in Multidistrict Litigation, we've reached that tipping point in MDL, and these circumstances warrant regulation. Even though MDL judges are the ones who entrench and enable repeat players, they also are integral to the solution.

By tinkering with lead-lawyer selection and compensation methods and instilling automatic remands to a plaintiff’s original court after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. Put simply, the antidote is to reinvigorate competition among plaintiffs’ attorneys and I’ve set forth several specific proposals for doing so in Part III of Monopolies in Multidistrict Litigation.  

For interested judges, that article's appendix also contains a Pocket Guide for Leadership Appointment and Compensation, a Sample Leadership Application form, and sample orders for suggesting remand and replacing leaders who ignore adequate representation concerns.

Prempro Settlements Total: $896 Million So Far

You can find the story, including the litigation scorecard, by Jeff Feeley for Bloomberg News here.

H/T How Appealing

ADL

 

Prempro Settlements Total: $896 Million So Far

You can find the story, including the litigation scorecard, by Jeff Feeley for Bloomberg News here.

H/T How Appealing

ADL

 

Prempro Verdict Roundup

Date	Compensatory	Punitive
9/15/2006	1.5	0
2/1/2007	0	0
2/1/2007	2.4	0
10/1/2007	11.66	33
10/1/2007	11.66	33
10/1/2007	11.66	33
3/1/2008	2.75	27
10/1/2009	3.7	75
11/29/2009	6.3	28
2/22/2010	3.45	6
2/25/2010	0	0
average	5.007272727	21.36363636

 

ADL

Defense Verdict for Wyeth in latest Prempro Case

After six hours of deliberation yesterday, a Pennsylvania jury reached a defense verdict in the case of Foust v. Wyeth.  This case comes on the heels of a number of plaintiffs victories.  Just this past Monday a jury issued a verdict for the plaintiff in Singleton v. Wyeth, finding $3.45 million in compensatory damages and $6 million in punitive damages.

In Foust, the jury found for Wyeth on causation.  One reason might be this, as reported by The Legal Intelligencer:

In an unusual aspect of the case, Foust's identical twin sister, Carol, took an HRT drug but did not get breast cancer. Both the plaintiffs and the defense sought to use Carol Foust's lack of cancer to their advantage in making arguments to the jury.

You don't see those kinds of facts every day.  The jury did find that Wyeth failed to adequately warn consumers about the risk of the drug.

h/t George Conk

ADL

Plaintiff Verdicts in Prempro Trials

In the hormone replacement therapy (HRT) litigation, plaintiffs won substantial verdicts in two trials in state court in Pennsylvania.  In the trial that concluded yesterday, the jury imposed punitive damages of $28 million on top of the $6.3 million in compensatory damages it had already awarded to plaintiff Donna Kendall.  In the other case, the court yesterday unsealed a punitive damages verdict of $75 million for plaintiff Connie Barton, who had been awarded $3.7 million in compensatory damages. When the Barton punitive verdict was reached in late October, the court took the unusual step of sealing the amount of punitives (see here and here) while the Kendall trial was pending.  Here's an excerpt from today's Philadelphia Inquirer article:

Pfizer Inc. has been hit with more than $100 million in two punitive-damage awards - one decided and the other unsealed yesterday - from Philadelphia juries.

Both cases involve Prempro, a hormone-replacement drug made by Wyeth, which recently was acquired by Pfizer. Plaintiffs said the drug was linked to their breast cancer.

The total includes $28 million awarded yesterday to Donna Kendall of Decatur, Ill.

In the second case, Philadelphia Common Pleas Court Judge Sandra Moss yesterday unsealed a verdict reached earlier this year that awarded $75 million in punitive damages to another Illinois resident, Connie Barton, over her Prempro-linked breast cancer. ...

About 1,500 of 10,000 similar cases are pending in Philadelphia, a common jurisdiction for large liability cases, attorneys say.

With the momentum in plaintiffs' favor and 10,000 cases remaining, one has to wonder whether Pfizer will seek some sort of global settlement.  We can't help comparing Pfizer's position to the position of Merck before it settled the Vioxx litigation.  After a similar but slightly higher number of trials, Merck abandoned its try-every-case-individually strategy and negotiated a mass aggregate settlement.  Merck, however, settled when it had a favorable trial record; so far the defendants have not prevailed in most of the HRT trials. 

HME

Confidential Verdicts

I was thinking about Erichson's post on the Prempro punitive damages verdict that has been temporarily sealedl so as not to bias the jury in subsequent trials.  This is a very curious aspect of the law to me - why shouldn't juries know how other juries have decided cases?  I am not sure where I come out on the question, but consider the following.

There are a lot of complaints that jury verdicts are inconsistent, even random, too high, too low, in any event different from what judges and lawyers think is the appropriate award for a given case.  Studies of historical jury verdicts, like those conducted by Neil Vidmar, show that there is some variability in jury verdicts that is not accounted for by the legally relevant facts of the case.  Surveys like those conducted by Michael Saks et al. demonstrate by and large agreement between judges and lawyers about case valuation, but more variability among lay persons (potential jurors).  Saks attributes this to the fact that jurors don't have a point of comparison, and the way judges and lawyers value cases is comparatively.

So why not give jurors a sense of what other juries have done, and let them decide what they think the appropriate amount of damages is in a given case.  Do we think juries will be too influenced by the number, that it will set a floor or a ceiling on their findings?  If we think variability of jury verdicts is a bad thing then wouldn't giving jurors a sense of other cases help limit that variability except where cases are legitimately different and deserving of different awards?  The doctrine of remittitur permits judges to compare jury verdicts and lower outlier verdicts, so the concept of  comparative valuation isn't foreign to our procedural regime.

ADL

Sealed Verdict in Prempro Punitives Trial

Yesterday, a Philadelphia jury found for the plaintiff in the punitive damages phase of a trial involving Prempro, the hormone replacement therapy.  How much Wyeth (now a unit of Pfizer) must pay Connie Barton, however, remains secret.  Judge Sandra Moss, who oversees the Prempro state court litigation in Philadelphia, ordered the verdict sealed because another Prempro trial had begun and the defendant requested the order to prevent biasing the other jury.  Until the verdict is unsealed, only Barton, her lawyers, and Wyeth's lawyers may see the verdict.  In the compensatory damages phase, which concluded last month, the jury awarded Barton $3.7 million.  Here's the report from Bloomberg about yesterday's verdict.

HME

Pfizer to acquire Wyeth

Pfizer and Wyeth today announced that Pfizer will purchase Wyeth for $68 billion, as anticipated.  The deal, as today's NY Times article notes, stands out in the current financial climate:

The deal not only create a pharmaceutical behemoth but would be a rarity in the current financial tumult: a big acquisition that is not a desperate merger of two banks orchestrated by the government.  It will also be the first big merger backed by Wall Street in months. While credit has been notoriously tight of late, five banks have agreed to lend Pfizer $22.5 billion to pay for the deal. Pfizer, which has roughly $26 billion in cash, would finance the remainder through a combination of cash and stock.

Every major pharmaceutical company has experienced mass tort litigation, and these two are no exceptions.  Pfizer defended the Celebrex and Bextra litigation, and earlier the Bjork-Shiley heart valve litigation.  Wyeth (formerly American Home Products) took a huge hit in the fen-phen litigation, and more recently has faced mass litigation over its Prempro and Premarin hormone replacement therapy products.

Last May, Amy Schulman joined Pfizer as its general counsel.  Before going in-house at Pfizer, Schulman headed the mass tort practice at DLA/Piper and was lead counsel for Pfizer in the Celebrex-Bextra litigation.  In December, Pfizer hired Bradley Lerman as its litigation chief.  As a partner at Winston & Strawn, Lerman defended McDonald's in the fast food litigation and worked for Phillip Morris in the Engle tobacco class action.

HME

Judge Overturns Punitive Damage Award in Prempro Case

Arkansas district judge Bill Wilson overturned an Arkansas jury's punitive damage award of $27 million to Donna Scroggin. The award included $2.75 million in compensatory damages. Judge Wilson based his decision on discarding plaintiff's expert evidence from Dr. Suzanne Parisian, a former FDA official. Scroggin sued Wyeth for inadequately warning her of the increased risk in breast cancer from Prempro. After taking the drug for 11 years, she developed breast cancer and underwent a double mastectomy. The Wall Street Journal story can be found here and the Associated Press story can be found here.

ECB

Judge Reduces Jury Verdict in Premarin & Prempro Case

This morning's Wall Street Journal reports that a district court judge in Nevada reduced a jury award against Wyeth from $134 million to $58 million.  The damages included both compensatory and punitive damages based on the theory that the drugs Premarin and Prempro caused plaintiffs' breast cancer.  The judge was concerned that the amounts represented "the result of passion and prejudice."  Here's an excerpt of the story:

Washoe County District Court Judge Robert Perry granted the drug maker's motion to find the damages excessive. He ordered the award reduced to about $58 million -- $23 million in compensatory and $35 million in punitive damages.

The judgment had been the largest award to date against the Madison, N.J., company, which faces about 5,300 similar lawsuits across the country.

All involve the drugs Premarin, an estrogen replacement, and Prempro, a combination of estrogen and progestin.

Judge Perry said the jury's judgment of $35 million in compensatory and $99 million in punitive suggested the amounts were "the result of passion and prejudice."

"The court believes that this reduction in damages adequately compensates plaintiffs for the serious consequences which the jury found to have been caused by defendant, while also serving to punish defendant and deter others from similar conduct," he wrote.

ECB

Summary Judgment for Wyeth in Minnesota HRT Lawsuit

A Minnesota judge granted summary judgment for Wyeth today in a hormone replacement therapy (HRT) lawsuit.  Here's an excerpt from the Reuters story:

A judge in Minnesota has dismissed a product liability lawsuit against Wyeth, granting the drugmaker's motion for summary judgment in a case in which a woman blamed the company's hormone replacement therapy for her breast cancer, Wyeth said on Tuesday.

In dismissing the case that had been scheduled to go to trial in January, Judge George McGunnigle of the Hennepin County District Court in Minneapolis found that the plaintiff, Patricia Zandi, had not offered any scientifically valid evidence to support her claim that she had developed breast cancer as a result using Wyeth's Premarin and Prempro.

The decision is bound to dampen some of the momentum for HRT plaintiffs generated by the recent Reno verdict.

HME

Follow-up on Prempro Trial

An Associated Press story in today's Reno Gazette Journal follows up on the Nevada Prempro plaintiffs' verdict.  The main point of the article -- No alarm on Wall Street over Wyeth case -- is that the financial markets are not particularly concerned about the litigation over the Prempro and Premarin hormone replacement therapy (HRT) drugs, and are treating the $134 million verdict ($35 million compensatory damages and $99 million punitive damages) more as an aberration than an omen.  As one financial analyst put it, as quoted in the article, "Unlike Wyeth's diet drug litigation, the Premarin/Prempro is widely viewed as more of a headline risk than a long-term financial risk."  Of course, after fen-phen, almost any Wyeth litigation risk would appear small by comparison.

HME

Punitive Damages in Nevada Prempro Trial

A jury in Reno today lashed Wyeth with a $99 million punitive damages verdict in a three-plaintiff Prempro lawsuit in Nevada state court.  The massive award was predictable given how events unfolded in the case last week.  On Wednesday, the jury rendered a compensatory damages verdict totaling $134.5 million.  When Judge Robert Perry learned that the jury was confused about compensatory and punitive damages, he ordered the jury to reconsider the amounts, and the jury came back with a total compensation verdict of $35 million.  Today, the jury returned to consider punitive damages, and unsurprisingly hit Wyeth with essentially the same amount it had intended as punishment last week. An AP story on the Houston Chronicle website -- Punitive Damages Awarded in Wyeth Case -- reports on today's punitive damages verdict:

Jurors awarded $99 million in punitive damages Monday to three Nevada women who claimed hormone replacement drugs distributed by pharmaceutical giant Wyeth caused their breast cancer. A Wyeth attorney said the award would be appealed. ...

After lawyers for both sides gave closing arguments again on Monday, the judge instructed the five-man, two-women jury to move to the punitive stage of the trial to consider whether the company's actions were so "reprehensible" that additional damages were warranted to punish it and discourage such behavior in the future. ...

The jurors returned at 1 p.m. Monday, two hours after they began deliberations following an impassioned plea by one of the plaintiffs' lawyers to return a large enough judgment to "get the attention and hold responsible" a company with a net worth of $14.6 billion.

HME

Prempro Jury Confused; Damages Reduced

If Wednesday's verdicts in the Nevada Prempro case seemed implausibly large for compensatory damages, here's the explanation:  the jury was confused about the difference between compensation and punitive damages.  Although for now, this means a substantial reduction in the verdicts, under the circumstances it cannot be considered good news for Wyeth.

According to this Reno Gazette-Journal article -- Jurors to reconsider Prempro damages -- the judge instructed the jury to reconsider its damages calculations:

Jurors in the Wyeth trial were sent back to the jury room this morning to reconsider the amount of damages the company must pay after they told the judge that they were confused about punitive damages when they ordered the company to pay millions on Wednesday.

The jurors told Judge Robert Perry that they included punitive damages in the total they awarded three women who had sued Wyeth, claiming its hormone replacement drugs caused their breast cancer.

... After learning of the confusion, Perry sent the jury back and said they must first recalculate the past and future damages, and then said he would hold a hearing with witnesses before the panel would decide punitive damages.

Later today, an article by AP writer Sandra Chereb -- Jury Cuts $100M From Award Against Wyeth -- reported that upon reconsideration, the jury reduced the total verdicts from $134.5 million to $35 million:

A jury on Friday slashed $100 million from a judgment against pharmaceutical giant Wyeth after it conceded a previous award was improper because it was intended to punish the company for its hormone replacement drugs.  Washoe District Judge Robert Perry instructed the five-man, two-woman jury to reconsider a $134.5 million compensatory award issued Wednesday after questions were raised about whether the judgment included punitive damages.  Perry said the matter was brought to his attention by a bailiff, who overheard discussion in the jury room.  "If we don't correct it now, we'll be trying this case again," the judge said.  After deliberating for about three hours, jurors on Friday awarded $35 million to three Nevada women for past and future medical expenses, as well as physical and emotional pain and suffering. ...

Perry twice denied a motion by Wyeth lawyer Dan Webb to declare a mistrial over the jury's confusion.  Webb argued that jurors were predisposed to punish the company before the punitive phase of the trial had begun.  The judge said jurors raised questions expressing their confusion during the initial deliberations, but Wyeth lawyers wouldn't allow an explanation. ...

The revised compensatory damage verdicts include $10.5 million for Jeraldine Scofield, $12 million for Arlene Rowatt, and $12.5 million for Pamela Forrester.  The jury will return Monday to decide whether to impose punitive damages.  Given the jury's premature attempt to punish Wyeth with an extra $100 million or so, there cannot be much doubt about how the punitive damages phase will turn out next week.

HME

Big Plaintiffs' Verdict in Nevada Prempro Trial

Yesterday, a Nevada jury hit Wyeth Pharmaceuticals with a $134.5 million verdict in a three-plaintiff hormone replacement therapy case.  According to a story in the Reno Gazette-Journal -- Jury Orders Wyeth to Pay Out Millions -- the jury found for the plaintiffs on negligence, product defect, and causation, found that Wyeth "concealed a material fact about the safety of the product," and found by clear and convincing evidence that Wyeth "acted with malice or fraud":

A Washoe County jury has ordered pharmaceutical giant Wyeth to pay more than $43 million each to three Northern Nevada women who claimed in a lawsuit the company's hormone-replacement drugs caused their breast cancer.

The jury said Premarin, an estrogen replacement, and Prempro, a combination of estrogen and progestin, were defective products and found Wyeth was negligent in producing, marketing and selling the drugs.

The bad news for Wyeth is that this was merely the compensatory damages phase; jurors will return tomorrow to decide punitive damages.  Yesterday's verdict broke down as follows:  for Jeraldine Scofield, $7.5 million in past damages and $36 million in future damages; for Arlene Rowatt, $7.5 million in past damages and $36 million in future damages; and for Pamela Forrester, $7.5 million in past damages and $40 million in future damages.  A year ago, Wyeth settled with Carol McCreary, a fourth HRT plaintiff who had been part of the same lawsuit.

The article notes that Wyeth is facing about 5300 HRT lawsuits involving about 7800 plaintiffs.

The Wall Street Journal reports that the financial markets do not seem particularly troubled by the Nevada verdict or by the Prempro litigation, which pales in comparison to the woes Wyeth faced in fen-phen.

HME

Wyeth Loses Prempro Trial

A jury found that Prempro caused the plaintiff's breast cancer and awarded Jennie Nelson and her husband $3 million, in a retrial of a Philadelphia HRT case.  Here's an excerpt from today's Philadelphia Inquirer story:

A Philadelphia jury blasted the drugmaker Wyeth yesterday for failing to warn a patient about breast-cancer risks of its hormone drug Prempro and awarded the Ohio woman and her husband $3 million in damages.

It was the second - and biggest - loss in litigation over Prempro. Wyeth has headquarters in Madison, N.J., with pharmaceutical operations in Collegeville. It has won two Prempro cases, has settled at least one, and has three more trials scheduled for this year.

Wyeth indicated it would appeal yesterday's verdict.

"We respectfully disagree that there is any scientific basis to support the jury's finding of a causal link between Wyeth's hormone therapies and the plaintiff's breast cancer," Barbara R. Binis, a Wyeth defense attorney from the Philadelphia office of Reed Smith L.L.P., said in a statement.

The company has said it faces about 5,000 cases over its hormone-replacement drugs, including Prempro and Premarin.

But plaintiffs' attorneys say cases involving at least 10,000 people have been filed nationwide in federal and state courts, including roughly 1,800 people in Philadelphia's Court of Common Pleas. Almost all involve breast cancer.

A Reuters story -- Jury awards plaintiff $3 million in Wyeth Prempro case -- notes that this was a retrial:

A previous Philadelphia jury also found in favor of the plaintiff, Jennie Nelson, in October. But the judge threw out that verdict and declared a mistrial, leading to the retrial that concluded on Tuesday.

The original jury at the Philadelphia Court of Common Pleas had awarded Nelson and her husband $1.5 million in compensatory damages. This time, Nelson was awarded $2.4 million and her husband $600,000.

The reason for the mistrial declaration was not disclosed at the time, with Nelson's attorney saying only that it was due to extraneous circumstances. There has been speculation since that the verdict may have been overturned as a result of juror misconduct.

The first Nelson trial (a phased trial using a reverse bifurcation structure) and the court's mistrial ruling had attracted attention from those looking for early signs of where the Prempro litigation might be heading.

HME

Wyeth Wins Prempro Trial in Federal Court in Arkansas

Article in the Wall Street Journal -- Jury Finds for Wyeth In Hormone-Drug Trial, by the Associated Press:

A federal jury ruled for Wyeth Pharmaceuticals on Thursday in the latest lawsuit claiming that the company's hormone-replacement drugs cause breast cancer.

After deliberating for more than a day, a jury in Little Rock sided with New Jersey-based Wyeth in a case filed by Helene Rush of Little Rock.

In her lawsuit, Ms. Rush accused the drug maker of negligence in its hormone replacement therapy. More than 5,000 similar suits have been filed across the country.

Ms. Rush, 72 years old, was diagnosed with breast cancer in 1999. Her attorneys say she took Wyeth's estrogen-progestin hormone therapy for nearly a decade.

Lawyers for Wyeth said Ms. Rush likely would have developed breast cancer regardless of whether she took Premarin and Prempro because of genetic and health factors, such as weight gain and a history of smoking.

BGS