Judge Asks Appeals Court to Uphold Dismissal of HRT Claims
January 2, 2009A Philadelphia judge has asked the state Superior Court to uphold a series of rulings dismissing the claims of plaintiffs who allege that the manufacturers of their hormone replacement therapy drugs are liable for their breast cancer.
Fourteen cases decided by Philadelphia Common Pleas Judge Allan L. Tereshko have been consolidated for consideration by a single Superior Court panel. Briefing has now been scheduled in the cases after Tereshko submitted his 1925(a) opinions by the Dec. 10 deadline set by the Superior Court.
Tereshko's reasoning in all of the opinions mirrors his decision in Coleman v. Wyeth to grant a defense motion for summary judgment. Tereshko attached the Coleman opinion as an exhibit to his other opinions in order to spell out his findings.
Tereshko granted defense motions for summary judgment in all of the cases because, he said, there was sufficient public information at the time all of the plaintiffs were diagnosed with breast cancer for the plaintiffs to learn that there was a risk of developing breast cancer from taking HRT drugs.
The judge said all of the plaintiffs' claims were time-barred by the statute of limitations, which he said had expired within two years of their diagnoses of breast cancer.
Tereshko noted that product package inserts warned of an increased risk of breast cancer from HRT, and there were news media reports as early as 1997 warning of the risk.
The plaintiffs argued that they did not become aware of the increased risk of breast cancer from HRT until the release of the Women's Health Initiative study July 9, 2002, which received wide-ranging notoriety, Tereshko said.
The study was discontinued early because of the finding that HRT increased the risk of coronary heart disease and invasive breast cancer, Tereshko wrote in his Sept. 24, 2007, summary judgment opinion in Coleman .
"Pennsylvania law does not require that plaintiff know of a definitive association between her injury and hormone therapy to trigger the statute of limitations," Tereshko wrote Nov. 24 in Weinberger v. Wyeth , one of the other consolidated appeals.
In many of his opinions, Tereshko also noted that the plaintiffs' fact sheets or supplemental fact sheets included statements that they were told by their physicians that their breast cancer could be related to HRT. Tereshko said these fact sheets were judicial admissions, and the plaintiffs can't contradict those fact sheets later on.
The pharmaceutical defendants are Wyeth Pharmaceuticals Inc. and Pharmacia and Upjohn Co., or Pfizer.
Howard Bashman, a Willow Grove, Pa., solo practitioner and regular columnist for The Legal , is handling the consolidated cases on appeal.
Frederic Eisenberg and Kenneth M. Rothweiler are also appellants' counsel in Coleman v. Wyeth , according to the dockets. Stephen A. Corr and John A. Corr of Mellon Webster & Shelly in Doylestown, Pa., also are appellants' counsel in Medwid v. Wyeth . Tobias L. Millrood of Pogust Braslow & Millrood in Conshohocken, Pa., is appellants' counsel in Manalo v. Wyeth . Robert Jenner of Janet Jenner & Suggs in Baltimore is appellant counsel in Hess v. Wyeth .
The consolidated cases being handled by appellants' counsel James A. Morris Jr. and Brian D. Ketterer of Brent Coon & Associates include Blaylock v. Wyeth, Weinberger v. Wyeth, Reed v. Wyeth, Stephenson v. Wyeth, Morales v. Wyeth, Lenzi v. Wyeth, Schirn v. Wyeth, Fleming-Crain v. Wyeth, Honaker v. Wyeth and Hansen v. Wyeth , according to the dockets.
In Medwid , Tereshko concluded Patricia Medwid became aware that her breast cancer was related to her HRT after her physician, Dr. Marcia Boraas, told her so two months after her modified radical mastectomy, according to a Dec. 9 opinion. Medwid, of Philadelphia, was diagnosed with breast cancer in 1998 after ingesting Prempro from 1994 to 1998.
In an affidavit, Medwid said Boraas told her breast cancer was "'estrogen positive, which meant that hormones fed the tumor and made it grow faster,'" but she did not learn that her HRT had caused her breast tumor until after the WHI study, Tereshko said.
Tereshko, however, said the affidavit was not credible because it was submitted after Wyeth's summary judgment motion.
Stephen Corr said in an interview that the drafting of the fact sheet was problematic, and the affidavit was only offered to clarify Medwid's response given in the fact sheet.
Corr said no discovery was taken in the case, so Medwid was never able to testify about her fact sheet and the plaintiffs' counsel weren't permitted to take depositions.
"We're anxious for the appellate courts to address the statue of limitations issue," Millrood said. "We're puzzled why Judge Tereshko departed from well-settled law that the question here involves a factual determination as to whether a party was able in the exercise of reasonable diligence to know of her injury and its cause under Pennsylvania law. That's a question for the jury to decide."
Since plaintiffs' depositions were never taken, summary judgment was entered on the basis of incomplete record, Millrood said.
"We believe the court acted upon many of these cases directly in the face of affidavits from plaintiffs and sometimes doctors that there was not a reasonable way for the plaintiffs to know" of their injuries, Millrood said. "That's a factual determination that our Pennsylvania appellate courts have confirmed over and over again that's for a jury to decide."
A Wyeth spokesman said Tereshko's opinions are consistent with Pennsylvania law.
"All of these cases were based on the SJ motion in Coleman that was decided on the grounds of statute of limitations," spokesman Doug Petkus said in an e-mail. "They have all been consolidated for appeal. The SJ opinions are consistent with settled PA law."
A Pfizer spokesman didn't respond to a request for comment before publication.
Reed Smith attorneys Henry Falkner Reichner, Andrew J. Trevelise, Michael T. Scott and Reetu Dandora are handling the consolidated HRT cases on behalf of Wyeth, according to the dockets.
Emily J. Lawrence and James D. Pagliaro of Morgan Lewis & Bockius are Pfizer's counsel, according to the dockets.
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