757 F. Supp. 2d 567
E.D. Va.2010Background
- Plaintiff Virginia Torkie-Tork sues Wyeth in a removed diversity case alleging Prempro caused breast cancer.
- MDL consolidation occurred; case remanded back to this district for case-specific discovery, summary judgment, and trial if necessary.
- Two remaining claims at trial: negligent failure to warn and negligent design regarding breast cancer risk.
- Wyeth moved in limine to exclude evidence of failure to test Prempro; motion denied to avoid jury confusion, but trial later focused on reason-to-know standard.
- Virginia law governs the warning claim, applying a reason-to-know standard rather than a should-know standard for testing.
- Judge instructed that Wyeth's duty to warn arises only from known or reasonably knowable risks at the time Prempro left Wyeth's hands, not from a general obligation to conduct additional studies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to conduct extra studies | Wyeth should have conducted additional Prempro studies. | There is no duty to conduct additional studies beyond FDA requirements under Virginia law. | No duty to conduct extra tests; failure to warn based on reason to know standard. |
| Appropriate Virginia standard for warning | Should-know standard applies to warnings. | Reason-to-know standard should apply, not should know. | Reason-to-know standard governs failure-to-warn claims in Virginia. |
| Admissibility of failure-to-test evidence | Evidence of testing could show risk knowledge and duty to warn. | Such evidence is not admissible to establish duty to test. | Evidence of failure to conduct additional tests is not admissible for proving duty to warn under reason-to-know standard. |
Key Cases Cited
- Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128 (1992) (reason to know standard governs warnings)
- Morgen Indus., Inc. v. Vaughan, 252 Va. 60 (1996) (three independent bases for products liability in Virginia)
- Featherall v. Firestone, 219 Va. 949 (1979) (adopts reason-to-know concept)
- Jones v. Ford Motor Co., 263 Va. 237 (2002) (applies reason-to-know standard to negligent failure to warn)
- Carlin v. Superior Court, 13 Cal.4th 1104 (1996) (comparison of negligence vs. strict liability in warnings context)