Deboard v. Wyeth, Inc.
28 A.3d 1245
N.J. Super. Ct. App. Div.2011Background
- Plaintiffs Loretta DeBoard and Dora Bailey developed breast cancer after taking Premarin, Prempro, and Provera, all FDA-approved prescription hormones.
- Wyeth, Inc., Wyeth Pharmaceuticals, Inc., and Pharmacia & Upjohn Company (Upjohn) manufactured Premarin, Prempro, and Provera; plaintiffs sued for product liability, warnings, fraud, misrepresentation, and NJ CFA claims.
- Drug history: Premarin is conjugated estrogen from pregnant mare urine; Prempro is estrogen plus progestin; Provera contains progestin.
- Plaintiffs began Premarin in 1991, were switched to Prempro in 1996, and were diagnosed with cancer in 2001 (DeBoard) and 2002 (Bailey); they ceased therapy after cancer diagnosis.
- Middlesex County housed the mass tort for discovery and trial; in March 2008, Wyeth and Upjohn moved for summary judgment, which Judge Happas granted in Bailey and incorporated into DeBoard’s case; plaintiffs appealed.
- Appellate matter consolidated; appellate court affirmed largely on the basis of Judge Happas’s comprehensive Bailey decision, applying well-supported reasoning to uphold summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the presumption of adequacy for drug warnings applies before 1995. | Bailey/DeBoard argue the presumption cannot apply pre-1995 due to off-label use. | Wyeth/Upjohn contend the presumption is properly applicable. | Affirmed; presumption upheld insofar as applied in the Bailey decision. |
| Whether the trial court properly construed the presumption and related law. | Plaintiffs contend the court misread the law on applying the presumption. | Defendants argue correct legal framework was used. | Affirmed; trial court’s construction sustained. |
| Whether the court properly drew favorable inferences from the evidence. | Plaintiffs claim favorable inferences should be drawn in their favor. | Defendants contend inferences should not favor plaintiffs given record. | Affirmed; inferences supported by record were properly drawn. |
Key Cases Cited
- Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162 (App.Div. 1998) (court relied on this authority for the viability of its reasoning in mass tort/warning cases)
- Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366 (1995) (landmark standard for review and appellate deference to trial court determinations)