Jon Campisi Dec. 19, 2013, 4:59pm


The Pennsylvania Supreme Court this week allowed a multi-million dollar

punitive damages award to stand in a case against Wyeth Pharmaceuticals brought by an out-of-state woman who says she developed breast cancer as a result of taking the hormone replacement therapy drug Prempro.

In a one-sentence per curiam order filed Dec. 16, the high court dismissed the defendant’s final appeal as having been improvidently granted.

Allocatur, the justices said, should never have been Ok’d.

Arkansas residents Mary Daniel and Thomas Daniel, Sr., filed suit at Philadelphia’s Common Pleas Court in late June 2004 alleging that Mary developed breast cancer in August 2001 after having taken the HRT drug for two years.

The woman ended up having to undergo surgery and chemotherapy to treat her disease, the record shows.

The couple sued Wyeth for negligence, breach of express warranty, fraud and loss of consortium.

Records show that a Philadelphia jury awarded the plaintiffs $1,681,650 in compensatory damages following a four-week trial in January 2007.

Punitive damages were also awarded at trial, but the judge ordered the dollar figure to remain under seal, according to the court docket at the Philadelphia Court of Common Pleas.

Jurors determined that Wyeth negligently failed to warn Mary’s physician of the risks of breast cancer while taking Prempro, the record shows.

The jury also concluded that Prempro was a factual cause of Mary’s breast cancer.

Later that year, Philadelphia Common Pleas Court Judge Allan Tereshko granted a post-trial motion by Wyeth seeking judgment notwithstanding the verdict because an expert witness retained by the plaintiffs had recanted his testimony on causation during a deposition he gave in another HRT case against Wyeth, the record shows.

“The fact that the jury did not have an opportunity to hear the Zandi testimony was significant in that it likely would have resulted in a defense verdict because Daniel failed to prove, more likely than not, Prempro caused her cancer,” Tereshko wrote in his Sept. 24, 2008 opinion, referring to the case of Zandi v. Wyeth.

In May 2011, the court docket shows, then-Common Pleas Court Judge Sandra Mazer Moss ordered that the record be unsealed, and the amount of punitive damages reported.

Bloomberg News subsequently quoted a plaintiff’s attorney in the case as saying that punitive damages were in the neighborhood of $8.6 million, making the overall verdict more than $10 million.

In 2011, the Pennsylvania Superior Court, a lower-tier appellate body, reversed the trial court’s ruling scrapping the jury verdict and ordered Wyeth to pay the more than $10 million in damages to Daniel, records show.

The Superior Court judges had determined that no fraud on the court took place  and that a new trial should never have been granted.

Wyeth Pharmaceuticals was bought by drugmaker Pfizer in 2009.

Spokesmen for Pfizer did not return a message seeking comment.

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