• May 13, 2009

In one of three bellwether cases in the Eastern District of Arkansas (three of 10,000 cases pending before Judge Wilson) for the prempro hormone replacement therapy cases, the major issue on appeal, argued on May 12, is plaintiff’s proof of cancer causation — a theory contested by defendants and a theory rejected by the Court. The jury verdict was nearly a year ago and included a punitive damages component of over $26 million against defendants Wyeth and Upjohn. Scroggin v. Wyeth (4:04-cv-01169-WRW, E.D. Arkansas)(Wilson, J.)

The appeal is before Judges Wollman, Gibson, and Murphy. The issues are extremely complex and beyond the scope of this blog but the crux is whether “differential diagnosis” (i.e., process of elimination) can be the basis for evidence of causation. That is, if we can rule out Cause A, Cause B, Cause D, Cause E, and Cause F, should courts allow juries to conclude that Cause C (defendant’s product) was the cause of plaintiffs’ cancer? (What about unknown causes?) Defendants say this case is the same as Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir.), cert. denied, 516 U.S. 869 (1995) “Daubert II” and plaintiff’s counsel, of course, said that this case could hardly be more different.

There was also a statute of limitations issue on appeal – the issue was when plaintiff received Wyeth’s warning (and, presumably, it would have had to have been sufficient).

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