October 11, 2007

The three plaintiffs found success in front of a Nevada jury. [WSJ Law Blog; Reno Gazette-Journal; Erichson] The WSJ reports: "The Reno case is the seventh to reach a verdict since trials began last year. Three of the other six trials resulted in verdicts in favor of Wyeth. Of those favoring plaintiffs, one was overturned and judgment entered in favor of Wyeth, and verdicts in the two others were thrown out and new trials ordered. None of the victorious plaintiffs in those cases had been awarded damages greater than $3 million." Thousands more cases are pending.

The hormone replacement therapy drug is said by two studies to increase the risk of breast cancer by 22-26%. Thus, about 80% of Prempro-taking breast cancer victims, by definition, did not have their cancer caused by Prempro. So how, without junk science, can plaintiffs possibly prove that it was more likely than not that Wyeth's actions caused the plaintiffs' injuries? And that is before we get to the question of outsized "compensatory" damages to the three plaintiffs, the fact that the warning label did mention the breast cancer risk, the fact that the warning label was FDA-approved, and the questionable procedure of yoking together three unrelated cases in a single trial, a mechanism that has been shown to increase juries' likelihood of finding liability. The jury returns to consider the question of punitive damages, though the award already given plainly has a punitive element, showing the futility of constitutional checks on punitive damages when non-economic damages are unfettered.