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Pennsylvania Panel Reinstates Compensatory, Punitive Damages In Prempro Case

PHILADELPHIA - A Pennsylvania Superior Court panel on Feb. 7 reinstated a $1.68 million compensatory damage verdict and a sealed punitive damage verdict in a state court Prempro case (Mary Daniel, et al. v. Wyeth Pharmaceuticals, Inc., et al., Nos. 2626 EDA 2007 and 2690 EDA 2007, Pa. Super.; 2011 Pa. Super. LEXIS 27). 

Mary Daniel took Prempro from 1999 to 2001 when she was diagnosed with moderately differentiated invasive ductal breast cancer.  Daniel sued Prempro manufacturer Wyeth, and in 2007, a jury in the Philadelphia County Court of Common Pleas awarded her $1,681,650 in compensatory damages.

The jury later awarded punitive damages, which were sealed so as not to prejudice a concurrent Prempro trial in a nearby courtroom. 

The trial court granted Wyeth's post-trial motion for a new trial on liability issues and granted the defendant judgment notwithstanding the verdict (JNOV) on punitive damages.  Daniel appealed, and Wyeth cross-appealed. 

The appeals panel said the trial court erred when it ruled that plaintiff expert Dr. Lester Layfield had recanted his testimony in a later case.  The panel found that the trial court's finding was "based on an incomplete consideration" of Layfield's testimony, that there is no basis to find that he recanted his opinion and that there was no "fraud on the court" by him.

The panel said Wyeth failed to preserve for appeal its appeal argument that the trial court improperly admitted evidence of remedial measures as proof of negligence.

The panel said the trial court did not err in refusing to grant Wyeth JNOV on proximate causation, saying there was sufficient evidence that Daniel's prescribing doctor would have heeded more adequate warnings about the risk of breast cancer from Prempro.

The trial court also did not err in denying JNOV to Wyeth because plaintiff labeling expert Cheryl Blume, Ph.D., is not a medical doctor.  

The panel said the trial court did not err in refusing Wyeth JNOV on the issue of whether short-term use of Prempro caused Daniel's breast cancer.  It noted that two experts testified about short-term use causation.

Finally, the panel said the trial court erred in granting JNOV on the punitive damage verdict.  It said Daniels presented evidence that Wyeth knew as early as the mid-1970s of the potential risk of breast cancer with estrogen, one of the two active ingredients in Prempro, and that it was reasonable for a jury to find that Wyeth knew that additional studies were required.  

The panel also said the trial court erred in finding that Wyeth's reliance on Food and Drug Administration testing and labeling requirements precluded punitive damages.

The panel also rejected the trial court's finding that federal constitutional law precludes a Pennsylvania state court jury from awarding punitive damages to an out-of-state plaintiff such as Daniel.  The panel said that contrary to case law cited by Wyeth and the trial court, the conduct on which the punitive award was based did not occur out of state but rather in state, because Wyeth is headquartered in Pennsylvania.

[Editor's Note:  Full coverage will be in the Feb. 17 issue of Mealey's Emerging Drugs & Devices.  In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #28-110217-002Z.  For all of your legal news needs, please visit]

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For more information, call editor Tom Moylan at 215-988-7739, or e-mail him at