In Pennsylvania’s first precedent-setting decision regarding hormone replacement therapy mass tort litigation, the Superior Court has revived a plaintiff’s lawsuit by finding that the plaintiff was entitled to an exception to the two-year statute of limitations because she couldn’t have reasonably known of an alleged link between her breast cancer and HRT drugs before the publication of a widely publicized study.
Despite a $1.5 million verdict in favor of plaintiff Merle Simon, Simon’s lawsuit was dismissed because of the judgment notwithstanding the verdict granted by Philadelphia Common Pleas Judge Nitza Quinones Alejandro.
Superior Court Judges, said the trial judge shouldn’t have tossed the plaintiff’s lawsuit because the suit was filed within two years of the July 9, 2002, publication of the National Institutes of Health’s Women’s Health Initiative, or WHI, study, which found that the use of hormone drugs estrogen and progestin increase the risk of breast cancer.
“Appellant had no reason even to suspect that there was a link between her use of HRT and breast cancer until the WHI report was released,” Bowes wrote in the Dec. 31 Simon v. Wyeth opinion. “Under the totality of circumstances, which included the facts that none of her prescribing physicians told her there was a causal link between her HRT and breast cancer, and the product information for Provera [a progesterone hormonal substitute manufactured by Pharmacia & Upjohn Co., now owned by Pfizer] was entirely dismissive of any such connection … it defies logic, contrary to the trial court’s suggestion, that appellant [Simon] should have been aware of the risk of taking HRT through her own due diligence.”
The trial judge granted JNOV on the statute of limitations question after finding that Simon reasonably should have known that one of her HRT drugs was a cause of her cancer and that her statute of limitations expired two years after her breast cancer diagnosis.
The Superior Court panel also said the trial judge should not have granted judgment notwithstanding the verdict on the issue of proximate causation. The trial judge found that Simon failed to establish proximate causation; the trial judge reasoned Simon failed to prove that a drug label warning of a greater risk of breast cancer to Provera’s users would have altered the prescribing practices of Simon’s physicians, Bowes said.
The Simon case is one of about 1,500 HRT cases filed in the Philadelphia courts. Plaintiffs counsel are viewing the Simon decision as a promising harbinger for the dozens of other HRT cases that are on appeal. Bowes is a member of another panel that heard oral argument in July over consolidated appeals of cases dismissed via summary judgments on the statute of limitations question.
The Simon ruling could reinstate 1,000 cases to the docket, said Simon’s trial counsel, the Morris Law Firm in Austin, Texas.
On the proximate cause issue, the panel resurrected the jury’s verdict, finding that the jury reasonably concluded that Simon could have been one of her doctors’ patients who would not have ingested HRT if Upjohn had adequately warned of the breast cancer risk.
Morris said Upjohn took the position that under Pennsylvania’s learned intermediary doctrine a plaintiff must show that the plaintiff’s prescribing doctor would not have prescribed the drug if the doctor knew then what the doctor knows now. But the court’s ruling will let plaintiffs argue that they would have made a different choice about accepting a prescription if their doctors had been provided a different warning and then shared that information with them, Morris said.
Simon was prescribed Provera, a manufactured form of progestin, which is manufactured by Upjohn Co., and Premarin, a form of estrogen manufactured by Wyeth, from 1992 to 1996, according to appellate briefs. In 1996, Simon was then prescribed Prempro, a Wyeth product that combined estrogen and progestin in one, until her breast cancer diagnosis, the appellate briefs said.
A common pleas jury found in its May 15, 2007, verdict that Upjohn’s Provera drug was a cause of Simon’s breast cancer. The jury found against Simon’s husband Stephen Simon’s loss of consortium claim, and the jury found that Wyeth, now also owned by Pfizer, had adequately warned Merle Simon in its product information about the risk of breast cancer from its HRT drugs, according to appellate briefs.
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