• November 2, 2009

In May, this blog reported argument in the Scroggin appeal, a bellwether case for one of hundreds if not thousands of Prempro hormone replace product liability lawsuits.  Today, the 8th Circuit opinion came down.

It will take some time to review and analyze the 41-page opinion but the quick news is that the Eighth Circuit affirmed the judgment as a matter of law in favor of Upjohn, but reversed it as to Wyeth, adopting the district court’s alternative holding and granting Wyeth a new trial on punitive damages “as the evidence could allow a jury to find or infer that Wyeth was guilty of malicious conduct.” (The trial court had thrown out the punitive damages award as a matter of law and held, as an alternative, that Wyeth should be entitled to a new trial on the punitive damages claim.)  The Eighth Circuit panel (Wollman, Gibson, and Murphy) concluded:

[The trial court’s] individualized treatment of the evidence may inadvertently have obscured the full scope of Wyeth’s conduct that the evidence collectively portrayed. Although Wyeth’s failure to organize one study to allow for adequate evaluation of the breast cancer risk, or its attempts to undermine the results of one adverse publication, may not reflect reckless disregard, a consistent pattern of such conduct might do so. A jury could find that although each study added to the evidence suggesting a risk of breast cancer, Wyeth nevertheless continued to engage in a practice of both inaction and mitigation….[A] jury could reasonably construe Wyeth’s documents as repeated efforts over many years to undermine information and studies that attempted to show a breast cancer link. A jury reasonably could find that these efforts allowed Wyeth to promote the false understanding that hormone replacement therapy was not linked to breast cancer and then to promote reliance on this understanding.

Leave a Reply

Your email address will not be published. Required fields are marked *