Not a Lexis+ subscriber? Try it out for free.


Supreme Court Denies Wyeth's Petition For Certiorari Over Punitive Damages Trial

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 21 denied Wyeth's petition for a writ of certiorari seeking reversal of the Eighth Circuit U.S. Court of Appeals ruling allowing a punitive-damages-only trial for a woman claiming that her use of Prempro contributed to her development of breast cancer (Wyeth v. Donna Scroggin, No. 09-1123, U.S. Sup.).

The high court, which took the case under advisement during a June 17 conference, also denied the drug maker's request to determine whether the federal appellate court erred in finding that Judge William R. Wilson did not err in admitting the testimony of expert witness Dr. Elizabeth Naftalis without expressly addressing the applicability of the factors set out in Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]).  Naftalis, a breast surgeon, used the differential diagnosis methodology to determine that Donna Scroggin's use of hormone replacement therapy was a contributing cause to her development of breast cancer.

Scroggin sued Wyeth and Pharmacia & Upjohn Co., now both subsidiaries of Pfizer Inc., in the U.S. District Court for the Eastern District of Arkansas, alleging that her use of Wyeth's Premarin and Prempro and Upjohn's Provera caused her to develop breast cancer in June 2000.  Her case became part of the Prempro multidistrict litigation in the Eastern District of Arkansas, and her case was the third to go to trial.  A jury returned a $2.75 million compensatory damages verdict in her favor and ordered Wyeth to pay $19.36 million and Upjohn to pay $7.76 million in punitive damages.  The manufacturers filed post-trial motions, and Judge Wilson reversed the punitive damages awards after finding that he erred in allowing testimony from Scroggin's regulatory expert, Dr. Suzanne Parisian, during the punitive damages phase of the trial.  The judge affirmed the compensatory damages award.

The parties appealed to the Eighth Circuit.  In November 2009, the appeals court ruled that Scroggin presented sufficient evidence to support her claim for punitive damages and ordered Judge Wilson to stage a retrial on the punitive damages claim only.   Wyeth filed a petition for a writ of certiorari to the Supreme Court, arguing that the Eighth Circuit's ruling violates the Seventh Amendment and that Naftalis' specific causation testimony should not have been admitted without first addressing its reliability under Daubert.

[Editor's Note:  Full coverage will be in the July issue of Mealey's Litigation Report: Hormone Replacement Therapy.  In the meantime, the order is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #76-100716-002R.  For all of your legal news needs, please visit]

Download the document now: - Document #76-100716-002R

For more information, call editor Shane Dilworth at 610-205-1106, or e-mail him at