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U.S. Supreme Court Declines To Hear Prempro/Premarin Punitive Damages Appeal

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 20 declined to review a Nevada Supreme Court decision affirming a $35 million punitive damages award in a Prempro/Premarin injury case (Wyeth LLC, et al., v. Jeraldine Scofield, et al., No. 10-1177, U.S. Sup.).


The questions before the high court were:  "(1) Whether, when a verdict has been tainted by a jury's passion or prejudice, due process requires a trial court to grant a new trial instead of remittitur; and (2) whether, and in what circumstances, a trial court violates due process when it awards a substantial amount in compensatory damages but nevertheless proceeds to award punitive damages in an amount exceeding the one-to-one ratio indicated in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), and Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)." 

The case involves Arlene Rowatt, Pamela Forrester and Jeraldine Scofield, who used Wyeth's Premarin or Prempro hormone replacement drugs long-term and later were diagnosed with breast cancer.  They sued Wyeth and related entities in the Washoe County, Nev., District Court, alleging that Wyeth failed to test the drugs, failed to warn them or their doctors about the risk of breast cancer and acted with malice in failing to take either action.  Forrester died during trial and was replaced as a plaintiff by her husband, Wendell Forrester, administrator of her estate. 

The women's cases were consolidated for trial, which took place in 2007.  When the jury was charged on the issues of causation and compensatory damages, it was not told that punitive damages would be determined in a separate phase, something the parties agreed to in order to avoid prejudicing the jury. 

The jury returned three verdicts awarding the plaintiffs a total of $134.6 million in compensatory damages and found that Wyeth acted with malice or fraud.  When the court learned that the compensatory award included punitive damages, it reinstructed the jury on the laws of compensatory damages and ordered it to deliberate again. 

After the second deliberation, the jury awarded a total of $35.1 million in compensatory damages.  The jury then deliberated on punitive damages and awarded a total of $99 million. 

Judge Robert H. Perry denied Wyeth's motion for a mistrial on the first combined verdict and Wyeth's later motion for judgment as a matter of law or a new trial on the second verdict and instead reduced the awards to $22.8 million in compensatory damages and $35 million in punitive damages. 

Wyeth appealed to the state Supreme Court, which in November affirmed the trial court, saying the compensatory and punitive awards were supported by substantial evidence, did not shock the conscience and did not violate Wyeth's due process rights. 

[Editor's Note:  Full coverage will be in the July 7 issue of Mealey's Emerging Drugs & Devices.  For all of your legal news needs, please visit] 

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