Fraser v. Wyeth, Inc.

• Decision Date: 14 January 2014
• Docket Number: Civil No. 3:04cv1373 (JBA).
• Citation: 992 F.Supp.2d 68
• Court: U.S. District Court — District of Connecticut
• Parties: Margaret B. FRASER and Joseph T. Fraser, Plaintiffs, v. WYETH, INC. and Wyeth Pharmaceuticals, Inc., Defendants.

992 F.Supp.2d 68

Margaret B. FRASER and Joseph T. Fraser, Plaintiffs,
v.
WYETH, INC. and Wyeth Pharmaceuticals, Inc., Defendants.

Civil No. 3:04cv1373 (JBA).

United States District Court,
D. Connecticut.

Jan. 14, 2014.

[992 F.Supp.2d 76]

Julie Ferraro, Bubalo Rotman, PLC, Gregory J. Bubalo, Paula S. Bliss, Steven B. Rotman, Bubalo Goode Sales & Bliss, PLC, Louisville, KY, Manish Indravadan Shah, Neal Lewis Moskow, Ury & Moskow LLC, Fairfield, CT, Christopher W. Goode, Bubalo Rotman, PLC, Lexington, KY, for Plaintiffs.

Adrienne D. Gonzalez, Julie B. Du Pont, Kaye Scholer, LLP, Catherine B. Stevens, Quinn Emanuel Urquhart & Sullivan, LLP, Daniel L. Cendan, Freshfields Bruckhaus Deringer U.S. LLP Eric M. Falkenberry, Tiffany Lee Christian, DLA Piper U.S. LLP, New York, NY, James I. Glasser, Jeffrey R. Babbin, Wiggin & Dana LLP, New Haven, CT, Matthew V. Johnson, Richmond T. Moore, William R. Murray, Jr. Williams & Connolly, Michele A. Roberts, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, Jane Elizabeth Bockus, Cox Smith Matthews Incorporated, San Antonio, TX, Kathy A. Cochran, Wilson Smith Cochran Dickerson, Seattle, WA, Kelly A. Evans, Snell & Wilmer LLP, Las Vegas, NV, Michael R. Klatt, Gordon & Rees, LLP, Austin, TX, Pamela Joan Yates, Kaye, Scholer, LLP, Los Angeles, CA, Spring Catherine Potoczak, Porzio, Bromberg & Newman, PC, Morristown, NJ, for Defendants.

RULING ON POST–TRIAL MOTIONS
JANET BOND ARTERTON, District Judge.

Following a jury trial and a verdict in favor of Plaintiffs Margaret Fraser and Joseph Fraser, Defendants Wyeth, Inc. and Wyeth Pharmaceuticals, Inc. (collectively “Wyeth”) move [Doc. # 337] pursuant to Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on all of Plaintiffs' claims and move [Doc. # 339] pursuant to Federal Rule of Civil Procedure 59 for a new trial and remittitur of the punitive damages award. Plaintiffs move [Doc. # 336] for post-verdict and post-judgment interest. For the reasons that follow, Wyeth's motion for judgment as a matter of law will be denied, its

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motion for a new trial and remittitur will be denied, and Plaintiffs' motion for interest will be granted in part and denied in part.

Table of Contents

I.	Procedural Background	77
II.	Motion for Judgment as a Matter of Law [Doc. # 337]	78

A.	Medical Causation	78
B.	Failure to Warn Claim	80
C.	Design Defect Claim	82
D.	Failure to Test Claim	84
E.	Negligent Misrepresentation Claim	84
F.	Punitive Damages	85

III. Motion for a New Trial and Remittitur [Doc. # 339]
87

A.	Spillover Prejudice	88
B.	Evidence of Marketing and Other Unrelated Conduct	88
C.	Improper Expert Testimony	88
D.	Jury Instructions	89

1.	Design Defect	89
2.	Failure to Test	90
3.	Negligent Misrepresentation	91
4.	Instruction on Preexisting Condition	91
5.	Punitive Damages Instructions	92
6.	Preliminary Jury Instructions	93

E.	Punitive Damages Verdict	93
F.	Manifest Weight of the Evidence	93
G.	Evidence Regarding Fen–Phen	94
H.	Untimely Subpoena of Dr. Deitch	94
I.	The Court's Conduct at Trial	95

1.	Questioning and Commentary by the Court	95
2.	Dr. Minkin	97

J.
Remittitur of Punitive Damages Award
97

1.	Plaintiffs' Contingency Fee Agreement and Litigation Expenses	98
2.	Due Process Concerns	100

IV. Motion for Post–Verdict and Post–Judgment Interest [Doc. # 336]
101

A.	Post–Verdict Interest	101
B.	Post–Judgment Interest	102

V. Conclusion
102

I. Procedural Background

In their Complaint [Doc. # 1], Plaintiffs claimed that through its manufacture and marketing of the hormone therapy medication Prempro, Wyeth violated the Connecticut Products Liability Act (“CPLA”) through failure to warn, strict liability for design defect, negligent failure to test, study or investigate, and negligent misrepresentation; breached implied and express warranties; violated the Connecticut Unfair Trade Practices Act (“CUTPA”); and was liable for loss of consortium. Wyeth moved for summary judgment, which the Court granted in part and denied in part, dismissing Plaintiffs' breach of warranty and CUTPA claims, but leaving all other claims for adjudication. Fraser v. Wyeth (“ Fraser I ”), 857 F.Supp.2d 244 (D.Conn.2012).

Following a three-and-a-half week trial, the jury returned a verdict finding Wyeth

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liable on all of Plaintiffs' claims—failure to provide adequate warnings, strict liability, negligent failure to test, study or investigate, and negligent misrepresentation—and awarded Ms. Fraser $3,750,000 in compensatory damages and Mr. Fraser $250,000 in loss of consortium damages. ( See Jury Verdict [Doc. # 275].) The jury also found that punitive damages should be awarded against Wyeth. ( See id.) In a separate ruling, this Court awarded punitive damages in the amount of $1,769,932.04,¹ based on Plaintiffs' reasonable attorneys' fees and costs. Fraser v. Wyeth (“ Fraser II ”), No. 3:04cv1373 (JBA), 2013 WL 4012764 (D.Conn. Aug. 5, 2013).

II. Motion for Judgment as a Matter of Law [Doc. # 337]

A court may enter judgment as a matter of law “[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a)(1). The standard for judgment as a matter of law under Rule 50 “mirrors” the summary judgment standard “such that the inquiry under each is the same.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citations and quotation marks omitted). However, where a jury has deliberated and returned a verdict, the Court “may set aside the verdict pursuant to Rule 50 only where there is ‘such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against him [or her].’ ” AMW Materials Testing, Inc. v. Town of Babylon, 584 F.3d 436, 456 (2d Cir.2009) (quoting Cross v. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir.2005)).

A. Medical Causation

Wyeth first argues that it is entitled to judgment as a matter of law on all of Plaintiffs' claims because Plaintiffs “failed to present a legally sufficient evidentiary basis for a reasonable jury to find that Prempro caused Ms. Fraser's breast cancer.” (JMOL Mem. Supp. [Doc. # 294] at 2.) Wyeth argues that the expert witnesses upon whom Plaintiffs relied to demonstrate causation, Drs. Roger Graham and Jedd Levine, did not base their opinions on a reliable method or rely on sufficient, reliable data to rule out Ms. Fraser's endogenous hormones as the cause of her cancer, and that even with the testimony of these experts, the jury's determination that Prempro caused Ms. Fraser's breast cancer was based on speculation.

With respect to Dr. Graham's and Dr. Levine's methodology, Wyeth claims that their “differential diagnosis” approach to opining that Prempro was a cause of Ms. Fraser's cancer lacked any systematic method for ruling out potential causes of her cancer other than Prempro, and thus consisted of unreliable speculation. At trial,

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Drs. Graham and Levine based their causation opinion testimony on Ms. Fraser's exposure to Prempro, the characteristics of her cancer, which they described as strongly positive for estrogen receptors, her relatively low overall risk factor profile, and epidemiologic evidence suggesting a link between estrogen plus progestin therapy and breast cancer. ( See, e.g., Trial Tr. Vol. VIII at 1412–14, 1429–45, 1449–52; Trial Tr. Vol. IX at 1628–29, 1646, 1651–73.) This evidence provided a sufficiently reliable foundation for these experts to eliminate other risk factors as causes of Ms. Fraser's cancer, thus isolating her Prempro use as the most probable cause. See Ruggiero v. Warner–Lambert Co., 424 F.3d 249, 254 (2d Cir.2005) (admissible differential diagnosis testimony requires that the expert use scientifically valid methodology to rule in the suspected cause and rule out other potential causes for the injury at issue); ( see also Order on Wyeth's Motion to Strike Causation Testimony of Dr. Jedd Levine [Doc. # 278].)

In arguing that Dr. Graham and Dr. Levine did not rely on sufficient, reliable data to rule out Ms. Fraser's endogenous hormones as the cause of her cancer, Wyeth claims that to have reliably testified that Prempro, rather than her naturally occurring hormones, caused her cancer, these experts needed to “establish a baseline of exposure to hormones under which Ms. Fraser could not have developed breast cancer and then establish that she was not exposed to that baseline before taking Prempro.” (JMOL Mem. Supp. at 7.) In effect, Wyeth argues that the only way that these experts could have reliably ruled out endogenous hormones as the cause of Ms. Fraser's cancer is if they could definitely identify a numerical value for the hormone level that would promote the development of an invasive breast cancer. Although both Dr. Graham and Dr. Levine were unable to provide such a figure at trial, they did testify that based on her reported menopausal symptoms, Ms. Fraser was estrogen deficient at the time she started Prempro, and this fact, combined with the characteristics of her cancer and epidemiologic evidence, helped rule out her own estrogen levels as a cause of her cancer. Specifically, Dr. Graham and Dr. Levine testified that epidemiologic studies such as the WHI and the Nurses' Health Study indicated that women, like Ms. Fraser, who took Prempro for at least five years, and who had low BMIs were at an even greater risk of developing breast cancer when taking Prempro. ( See Trial Tr. Vol. VIII at 1449–52; 1488–89, 1569–72; Trial Tr. Vol. IX at 1662–67.) Dr. Graham and Dr. Levine testified that they relied on this data, and on Ms. Fraser's individual risk factors as evidenced by her medical records, such as her weight, breast density,...