New damages trial for Wyeth in Ark. hormones case

LITTLE ROCK, Ark. — Wyeth Pharmaceuticals will get a new trial to determine if the drugmaker should pay punitive damages to a woman who got breast cancer after taking hormone replacement therapy, a federal appeals court ruled Monday.

The 8th U.S. Circuit Court of Appeals in St. Louis ruled on an appeal by the woman, who sued Wyeth and drugmaker Upjohn Co., and an appeal by the two companies.

An Arkansas jury had sided with Donna Scroggin in her lawsuit against Wyeth and Upjohn, awarding her $2.75 million in compensatory damages and $27 million in punitive damages in February 2008. Jurors concluded Wyeth inadequately warned the Little Rock woman that its drugs Premarin and Prempro carried an increased risk of breast cancer. The suit also involved Upjohn’s Provera, an estrogen-only drug.

U.S. District Judge Bill Wilson struck down the punitive damages award in July 2008, saying certain testimony from former Food and Drug Administration official Dr. Suzanne Parisian, who was the plaintiff’s regulatory expert, shouldn’t have been allowed at trial.

Monday’s ruling by a three-judge panel of the appeals court upheld the jury’s compensatory damage award, but also upheld Wilson’s decision that Upjohn should not have to pay punitive damages. However, the appeals court said a new trial must be held to determine if Wyeth should pay them.

“Scroggin presented sufficient evidence to submit the question of punitive damages (against Wyeth) to the jury, even without” the testimony from Scroggin’s expert, the appeals decision said.

The appeals court said Wilson analyzed the punitive-damages evidence against Wyeth on a piece-by-piece basis, “explaining that each piece failed to present clear and convincing evidence of reckless indifference.”

“This individualized treatment of the evidence may inadvertently have obscured the full scope of Wyeth’s conduct that the evidence collectively portrayed,” the appeals court decision said. “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.”

Both Wyeth, based at Madison, N.J., and Upjohn are now part of New York-based pharmaceutical giant Pfizer Inc. A man who answered the telephone at Wyeth after business hours Monday said no one was available to comment on the appeals court’s ruling.

A telephone number was not listed for Scroggin in Little Rock.