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Asher Hawkins

The Legal Intelligencer

02-22-2007

A Philadelphia jury has reached a $3 million compensatory damages verdict in the retrial of the Philadelphia Complex Litigation Center's first hormone therapy case.

The first jury in Nelson v. Wyeth concluded in mid-October that Wyeth, if found liable during the second phase in the bifurcated litigation, would have to pay the action's wife-and-husband plaintiffs $1.5 million.

At one point, it seemed as if a mistrial in those proceedings might be declared post-verdict after the court learned that one juror had threatened another with a detached table leg during deliberations.

But ultimately, Senior Judge Norman C. Ackerman -- the former head of the CLC -- made the decision to have a second go-around after the new year when defendant Wyeth revealed that one juror had failed to disclose a felony theft conviction during voir dire.

In the meantime, the CLC’s second hormone therapy trial -- in a case captioned Daniel v. Wyeth -- ended last month with a $1.5 million compensatory damages verdict for that matter's wife-and-husband plaintiffs. That trial was not reverse-bifurcated, but was split into compensatory and punitive damages phases.

However, Senior Judge Myrna P. Field disagreed with the jury's conclusion that punitive damages were warranted in the case and went on to seal the Daniel jury's noncompensatory damages award. Field held that that award can be unsealed if an appellate court reverses her and sides with the jury on the punitive damages issue.

Senior Judge Ricardo C. Jackson -- who presided over the roughly month-long retrial in Nelson, also not reverse-bifurcated -- went one step further than Field when it came to the question of punitive damages in this winter's retrial: He granted a Wyeth motion for compulsory nonsuit on the matter's punitive damages claim soon after the plaintiffs had rested.

The Nelson retrial's nine-member panel -- which included three women -- went on to deliberate as to compensatory damages only.

On Tuesday morning the jury announced its unanimous verdict in favor of Jennie and Lawrence Nelson of Dayton, Ohio.

They awarded Jennie Nelson $2.4 million, with the remaining $600,000 going to her husband.

The total amount is double the figure reached by the juries in the CLC's previous two hormone therapy litigations.

Tobi Millrood of Schiffrin Barroway Topaz & Kessler in Radnor -- the Nelsons' attorney, and plaintiffs-side liaison counsel for the CLC's hormone therapy program -- said that the presentation of the Nelsons' case did not differ much the second time around.

"Every jury comes to a different decision as to what they think is fair," Millrood said.

Millrood praised the patience of his clients as they waited through two lengthy trials. He said that Lawrence Nelson has been ill recently and had to be hospitalized in Philadelphia while the litigation continued.

Michael Scott of Reed Smith in Philadelphia, who represents Wyeth in the matter and is Millrood's defense-side counterpart in the CLC's hormone therapy program, said that Wyeth was "very disappointed" with the Nelson verdict.

"We don't think the evidence supported the verdict, and we will appeal," he said.

A key question going forward is whether the plaintiffs will choose to appeal Jackson's ruling against them on their punitive damages claim.

If they do so -- and even if an appellate court ultimately agrees with their argument that the Nelson retrial jury should have been allowed to reach its own decision as to punitive damages -- there's no telling whether an appeals panel might order a third, month-long round of litigation that could put into jeopardy the sizable compensatory damages award handed up by the case's second jury.

Millrood said his clients are weighing their appellate options. He noted that Pennsylvania's courts have often ruled in favor of leaving it to juries to determine whether or not a standard negligence action’s defendant acted recklessly and/or outrageously.

Millrood also said that if the Nelsons do appeal, it's possible an appeals court might remand with instructions for a retrial as to punitive damages only.

Millrood said that despite what may be perceived as setbacks for the hormone therapy plaintiffs on the punitive damages front, the past month's two compensatory damages awards alone send "an important message to Wyeth."

"The big story here is that there have been two cases teed up for trial in the Philadelphia courts, and in both of those, the juries have unequivocally found that Prempro causes breast cancer and that the warnings that accompanied this drug were inadequate," Millrood said. "The scorecard is plaintiffs 2, Wyeth 0."

Nelson and Daniel are the first two cases to be tried -- by agreement of both sides of the hormone therapy program aisle -- as part of the program's bellwether process, according to Millrood.

He said that those cases are two of eight that were agreed upon as the best hormone therapy cases to try before the other hundreds being managed by the program. The defense side of the program picked four they were eager to try, and the plaintiffs' side chose their own four, according to Millrood.

Millrood said Daniel was a defense-side pick, while Nelson was picked by the plaintiffs' side. "We have tried this case now twice, both times on Wyeth's terms," he said of Nelson.

In the original Nelson proceedings, according to Millrood, Wyeth insisted on that litigation's reverse-bifurcation.

This time around, Millrood said, Wyeth's attorneys fought strongly against the admission of any evidence that would have bolstered the plaintiffs' case for punitive damages.

"Throughout the case, if there was one word uttered of their sales and marketing practices, Wyeth shut that down," he said.

The complicated appellate issues already highlighted by the trials of the CLC's first two hormone therapy cases underscore the fact that it likely won't be possible to effectively try every single one of the hundreds of similar actions currently assigned to the program.

"I think eventually it’s going to be necessary -- in order to manage a docket of 1,800 cases -- that the parties sit down and discuss what lessons we're learning," Millrood said.