Jon Campisi Feb. 28, 2013, 9:57am

A three-judge state Superior Court panel has upheld a defense verdict in a hormone

replacement therapy case originating out of Philadelphia in which a woman sued Wyeth over claims that the HRT drug Prempro caused her breast cancer.

The panel, made up of Superior Court Judges Ann E. Lazarus, Paula Francisco Ott and Eugene B. Strassburger, III, concluded that there was no impropriety in the Jan. 12, 2011 verdict in favor of Wyeth Pharmaceuticals.

The drug company was sued by Frances Henry over claims that the plaintiff’s use of Prempro to combat the side effects of menopause caused her to develop breast cancer in May 2003, eight years after she began using the drug.

Frances claimed in her lawsuit, which was filed in early July 2004, that Wyeth was negligent in failing to properly warn her of Prempro’s harmful side effect.

The case was tried in a reverse bifurcated fashion, during which the issues of medical causation and compensatory damages were addressed in the first phase.

Following phase one’s completion in late August 2010, the jury hearing the matter returned a verdict in favor of Wyeth, the record shows.

Henry subsequently filed post-trial motions seeking either a new trial or judgment notwithstanding the verdict.

The motions were denied by Philadelphia Common Pleas Court Judge James Murray Lynn, after which Henry took her legal fight to the appellate courts.

In its non-precedential decision released on Feb. 22, the appeals panel ruled that the defense verdict can stand.

In her appeal, Henry argued two issues, one of which was whether the trial court committed reversible legal error by rejecting Henry’s proposed factual causation question for the verdict form that the jury must determine whether Prempro was a “factual cause in bringing about harm” and directing the jury instead to answer whether Prempro was a “factual cause in the development of [Henry’s] breast cancer,” thereby suggesting that Prempro must have initiated rather than promoted her cancer.

The panel first noted that when counsel doesn’t object to language on the verdict slip during trial, the issue is waived on appeal.

In this case, the verdict sheet, after some attorney wrangling, ended up stating the following: “Was Wyeth’s drug Prempro a factual cause in the development of Plaintiff Henry’s breast cancer?”

The appeals judges wrote that based on the foregoing, it is clear that Henry never objected to the use of the word “development,” and therefore means she has waived the issue for the purposes of appellate review.

“Even if Henry had not waived this objection, we would still conclude that she is not entitled to a new trial,” the Superior Court ruling states. “Henry argues that the trial court erred as a matter of law in replacing the words ‘bringing about harm’ with the language ‘developing breast cancer.’ Specifically, Henry contends that this was a fundamental error ‘because it misled or confused the jury’ as to the issue of causation. We disagree.”

First, the panel noted that the jury was instructed using the same language on the issue of causation, and second, there is no allegation that the jury was improperly instructed on the issues of causation.

Citing the Superior Court case of Jeter v. Owens-Corning Fiberglass Corp., the panel wrote that a “reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental.”

“In reviewing a trial court’s charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety,” the judges wrote, citing Jeter.

In this case, Henry’s suggestion that the word “development” somehow misled or confused the jury as to issue of causation is “untenable,” the panel wrote.

The judges also noted that Henry repeatedly used the same terminology throughout her entire opening statement.

“Thus, it is disingenuous to say now that such terminology confused or misled the jury,” the decision reads. “Accordingly, even had Henry preserved this issue, she would not be entitled to relief.”

The memorandum was written by Judge Strassburger.

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