Connecticut Federal Jury Finds Warning Adequate In Prempro Wrongful Death Suit

Connecticut Federal Jury Finds Warning Adequate In Prempro Wrongful Death Suit

BRIDGEPORT, Conn. - (Mealey's) Wyeth is not liable for the breast cancer death of a woman who took the company's hormone therapy drugs Premarin and Prempro, a Connecticut federal jury said May 30, finding that the drugs' labeling contained adequate warning of the drugs' health risks (Kenneth Moss, et al. v. Wyeth, Inc., et al., No. 3:04-1511, D. Conn.). 

(Verdict form. Document #28-120607-008V.) 

The jury found that plaintiff Kenneth Moss failed to prove a design defect that would have made the company liable in strict liability.  The jury also found against negligent failure to test, study or investigate the drug or negligent misrepresentation.  Trial began May 3 before U.S. Judge Stephan R. Underhill of the District of Connecticut. 

Lynn Gardner Moss sued Wyeth (now owned by Pfizer Inc.), alleging that its hormone replacement therapy drugs Premarin and Prempro caused her breast cancer.  She was prescribed Premarin and Provera in 1993 to treat post-menopausal symptoms and was switched to Prempro in 1996. 

In 1996, Moss was diagnosed with breast cancer at age 54.  She died in 2006 from breast cancer, and her husband stepped in as plaintiff and as the representative of her estate. 

Design Defect 

Wyeth argued that Connecticut does not recognize strict liability claims for design defects in prescription drugs under the Connecticut Product Liability Act, which Judge Underhill rejected May 24, ruling that the state Supreme Court would recognize such claims. 

Judge Underhill said a case-by-case approach "is more consistent with Connecticut's existing strict product liability jurisprudence.  Connecticut courts have traditionally taken a liberal view to design defect claims." 

On May 17, Judge Underhill denied Wyeth's in-trial motion to grant summary judgment because Moss failed to sign a waiver-of-service form and therefore missed the three-year Connecticut statute of limitations.  The judge said that Wyeth's motion itself was time-barred and that it lacked substantive merit. 

On May 8, Judge Underhill denied Wyeth's motion for a mistrial.  The defendant moved for judgment as a matter of law, which the judge took under advisement. 

Counsel 

Moss is represented by Gregory J. Bubalo, Steven B. Rotman and Paula S. Bliss of Bubalo Rotman in Louisville, Ky., and Neal L. Moskow of Ury & Moskow in Fairfield, Conn. 

Wyeth is represented by David E. Dukes of Nelson, Mullins, Riley & Scarborough in Columbia, S.C.; Pamela J. Yates of Kaye Scholer in Los Angeles; Kelly Evans of Snell & Wilmer in Las Vegas; Joseph W. Martini of Wiggin & Dana in Stamford, Conn.; and Andrew K. Solow of Kaye Scholer in New York. 

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