A federal court in Connecticut kept alive a Prempro breast cancer wrongful death case, denying Wyeth’s pretrial motion for summary judgment. Plaintiffs’ brought the classic Prempro case against Wyeth who makes the hormone therapy drugs Premarin, an estrogren, and Prempro, a combination of Premarin and a progestin, which are both prescribed to combat the symptoms of menopause. Plaintiffs’ wrongful death lawsuit claims that a woman died of breast cancer using these drugs that were unreasonably dangerous and that they lacked adequate warnings.
Wyeth argued that the Connecticut Product Liability Act does not recognize strict liability design defect cases, contending that the infamous common K of Section 402A of the Second Restatement of Torts.
Section 402A imposes strict liability for defective products that are found to be unreasonably dangerous to the end user. Comment K suggests an exception for products that are “unavoidably unsafe.” This Connecticut federal court found that comment K should not be applied uniformly to prescription drugs. Instead, each drug should be considered on a case-by-case basis.
Of course, in these cases a federal judge is really predicting how the state’s high court would rule in the same case. In this case, the court believed that Connecticut law is that a plaintiff in a drug case can establish a prima facie case for defective design by showing that a drug was unreasonably dangerous under the consumer expectations and modified consumer expectations tests. If the plaintiff can jump this hurdle, the defendant raises comment K as an affirmative defense.
In this case, that means Wyeth would have to prove that these drugs were unavoidably unsafe, that they could not have been made safer, that benefits exceed risks given state-of-the-art knowledge, that the drug be free of manufacturing defects and that the drug have adequate warnings.
Wyeth also made some annoyingly typical procedural arguments, claiming the statute of limitations had passed based on some bogus claim of defective service of process. The court easily dismissed Wyeth’s arguments.
You can find the court’s opinion on Moss v. Wyeth here.
Please Note: our law firm is not handling Prempro breast cancer lawsuit.