Drug company attorney asks for new trial in $58 million judgment

By Cy Ryan

Monday, May 3, 2010 | 1:29 p.m.

An attorney for the pharmaceutical firm Wyeth is urging the Nevada Supreme Court to order a new trial following a $58 million judgment on behalf of three women who contacted breast cancer after taking the drug Prempro.

Lane Heard, a Washington, D.C., attorney, argued errors during the trial can only be corrected by a new trial.

The jury initially considered both compensatory and punitive damages and came back with a record $134.5 million judgment against Wyeth, which is now part of Pfizer. Of that, $99 million was punitive damages and $35.5 million was compensatory.

Judge Perry voided the $99 million and sent the jury back to decide punitive damages. It returned with a lower punitive judgment, raising the overall judgment to $58 million.

Heard said District Judge Robert Perry should have instructed jurors to hold separate sessions to decide compensatory and punitive damages. Heard claims it was a "constitutional error that tainted the entire jury."

The plantiffs' attorney, Zoe Littlepage, acknowledged the "inadvertent error" during the Reno district court trial, but said there was no jury misconduct to merit reversing the judgment.

Arlene Rowatt of Incline Village, Jeraldine Scofield, formerly of Fallon and now of Spring Valley, Calif., and Pamela Forrester of Yerington, said taking the drug Prempro, billed as a hormone replacement, led to their developing breast cancer.

Rowatt and Forrester have died since the jury decision in October 2007. And Scofield, 76, was in the court for the hearing by the Supreme Court that took the arguments under submission.

Littlepage said there was never any instruction to the jury there must be two phases - compensatory and punitive damage awards. She said Judge Perry, once the error was found, correctly sent the jury back into to consider the punitive damages.

Heard also argued that two of the women had lived in Washington and Oregon for many years before moving to Nevada. He claims it was an error in allowing the case to be heard in Nevada instead of those states.

Littlepage said the women were diagnosed in Nevada with the breast cancer and it was in Nevada they suffered their physical and emotional pain.

Heard also told the court there were "inflammatory arguments" in closing arguments by the plantiffs' attorney, who referenced the salaries of top executives at Wyeth while discussing damages.