PENNSYLVANIA RECORD

A federal judge in Philadelphia has granted summary judgment to Wyeth

Pharmaceuticals and other drug companies named in a products liability complaint by a Nevada woman who alleged her breast cancer was caused by hormone replacement therapy products manufactured by the defendants.

U.S. District Judge Ronald L. Buckwalter, who sits in the Eastern District of Pennsylvania, ruled in a July 18 order that the plaintiff, Sharon Williams, failed to demonstrate that the hormone therapy treatment specifically caused her breast cancer, a necessary requirement under both Pennsylvania and Nevada law.

(Under Pennsylvania and Nevada law, causation is a necessary requirement for each claim brought by a plaintiff in cases such as these).

Williams, who was diagnosed with breast cancer in the late 1990s, had taken a variety of hormone replacement therapy drugs manufactured and marketed by the defendants from 1983 until she was diagnosed with hormone receptor positive breast cancer in October 1998, the record shows.

The woman initially brought suit against Wyeth as part of a multi-plaintiff complaint in a federal court in California in the summer of 2004, but the case was eventually consolidated as part of a multidistrict litigation in eastern Arkansas.

Three years ago, the then-presiding judge began remanding cases back to the transferor courts for case-specific discovery and trial, notes a memorandum accompanying Buckwalter’s order.

The MDL judge had also ordered that the cases be re-filed in an appropriate federal district.

Williams chose to re-file her lawsuit in the Eastern District of Pennsylvania in late February 2010, the record shows.

The plaintiff’s complaint contained claims of negligence, fraud, products liability and breach of warranty.

Attorneys for Wyeth and the other pharmaceutical manufacturers named as defendants in the case argued that Williams could not prevail on any of the counts because of her apparent inability to prove causation, specifically through medical expert witness testimony.

“In summary, in order to prevail on cases like that currently before the Court, Plaintiff must provide expert medical testimony demonstrating that, to a reasonable degree of medical certainty, Defendants’ products were a substantial factor in causing Plaintiff’s cancer,” Buckwalter wrote. “The crux of Defendants’ argument is that Plaintiff has simply failed to provide such testimony.”

Buckwalter ended up disagreeing with Williams’s contention that the deposition testimony of her physician, James Waisman, provided the necessary evidence of causation.

The judge wrote that it had been made clear on numerous prior occasions that the doctor was not operating as an expert witness during his deposition testimony.

Upon questioning by the plaintiff’s lawyer, Buckwalter wrote in his memorandum, Waisman clarified that he was never asked to be an expert witness and had not agreed to give an expert opinion or testimony in the case beyond his treatment and care of Williams.

Even if the court had accepted Waisman as an expert witness, the doctor’s testimony would have still failed to meet the necessary “substantial factor” requirement necessary to prove legal causation, the judge wrote.

“Dr. Waisman’s testimony that the hormone therapy treatment ‘played a role’ in causing Plaintiff’s breast cancer is contravened by his later testimony …,” Buckwalter wrote. “Simply put, ‘playing a role’ is not the same as being a ‘substantial factor.’ As such, summary judgment must be granted in favor of Defendants.”

The court docket shows that the Wyeth defendants were represented by attorneys from the firm Shook Hardy & Bacon as well as lawyers from Dechert LLP.

The plaintiff was represented by attorneys from Philadelphia’s Williams Cuker & Berezofsky and counsel from the Montgomery County firm Pogust & Braslow LLC, as well as other attorneys from the out-of-state firms of Kabateck Brown Kellner LLP and Khorrami Boucher Sumner Sanguinetti LLP.