To pull off a defense win in a product liability case, it’s crucial to have a judge willing to block damaging evidence from the jury. Contrasting jury verdicts in two recent trials over Premprothe menopause relief drug from Pfizer that has been linked to breast cancerprovide proof of that point.
On Wednesday a federal jury in Bridgeport, Connecticut, found that Pfizer’s subsidiary Wyeth Pharmaceuticals isn’t liable for the 2006 death from breast cancer of a 62-year old nurse who used Prempro. The verdict came after four weeks of trial and just five hours of deliberation. Louisville-based Bubalo Rotman represented the plaintiff. Pfizer was represented by Kaye Scholer partners Pamela Yates and Andrew Solow, as well as David Dukes of Nelson Mullins Riley & Scarborough, and Kelly Evans of Snell & Wilmer.
In contrast to the Bridgeport verdict, a jury in nearby New Haven returned a $4 million verdict against Wyeth in a different Prempro trial a month ago. In that case, Bubalo Rotman also represented a sympathetic plaintiffa retired elementary school principal and breast cancer survivorand Snell & Wilmer’s Evans also worked on Pfizer’s defense team, which also included Skadden, Arps, Slate, Meagher & Flom.
The main difference in the two cases, it seems, was the willingness of the presiding judge to keep out disputed evidence. The judge in the Bridgeport case, Stefan Underhill, block the jury from learning about an expert report that estimated that 150,000 women developed breast cancer from using Prempro. Underhill agreed with Pfizer that the evidence had limited value to the case at hand, and could have led jurors to decide the case on a purely emotional bases.
Plaintiffs’ lawyers in Prempro cases have had a field day with that estimate in the past. The attorney in one case brought in 75,000 toothpicks to represent half of the women, and argued to the jury that “each one of these toothpicks is family impacted by breast cancer.” That attorney also told jurors to imagine “three [football] stadiums full of women that got breast cancer from these drugs.”
Judge Underhill also blocked two other pieces of evidence that the judge in the New Haven case let in: the fact that the Food and Drug Administration criticized Wyeth’s warning label back in 2000, and the fact that Wyeth changed its warning label after a 2002 study linked Prempro to breast cancer.
We caught plaintiffs counsel Gregory Bubalo on his cell before he boarded a plane out of Connecticut and asked him for his take. “Judge Underhill had a much more restrictive view of the evidence,” he said. “I think that’s the reason that we won in New Haven but lost in front of Judge Underhill.”
Bubalo said his firm does not yet know if it will appeal. “I feel terrible for the family [of the Bridgeport plaintiff],” he added. “That’s my emotional reaction.”
Kaye Scholer’s Yates referred us to a Pfizer spokesperson, who provided the following statement: “While we have great sympathy for Mrs. Gardner-Moss’s family, this verdict affirms the fact that Wyeth acted responsibly by communicating accurately the risks and benefits of its hormone therapy medicines, which have always carried science-based, FDA-approved warnings for physicians and patients.”
With the latest verdict in Bridgeport, Pfizer has won eight of the last ten Prempro cases that have culminated in a jury verdict.