A Bullock County woman filed a lawsuit June 3 against Wyeth Pharmaceuticals and Qualitest Pharmaceuticals of Alabama for allegedly causing her to develop breast cancer by falsely promoting hormone therapy medication.

Barbara Graham began taking the hormone therapy drug Premarin, Prempro and Medroxyprogesterone Acetate (MPA) in the mis-1990s to treat menopausal symptoms.

Ted Meadows, Grahams Lawyer, said studies show a significant risk of developing breast cancer from taking these medications.

“The FDA did not intend for these drugs to be marked for long term use,” Meadows said. “They were intending only for severe menopausal symptoms.”

Jere Beasley, a partner in Beasley Allen Attorneys at Law of –Birmingham–??, said these drugs have life-threatening risks, like breast cancer, ovarian cancer, heart attacks, strokes and non-hodgkins lymphoma.

Beasley said these pharmaceutical companies were aware of the risks, and promoted a dangerously high dosage and long-term usage without warning the customer of the significant risks associated with the prescription.

Melissa Prickett, another partner at Beasley Allen, said Graham began taking the medication in 1996 and stopped taking it in the summer of 2003, after learning she had developed breast cancer. Biopsies with hormone receptors showed the tumor was caused by the hormone therapy treatment.

“Graham’s treatment included a lumpectomy to remove the rumor and seven weeks of radiation.” Prickett said.

Meadows said these medications were first used in the 1960s and 1970s, and there was no testing done then to look for the possibility of breast cancer. He added that in 2002, doctors began to realize the of dangerous side effects of the hormone therapy medication.

Meadow’s said after this sales began to drop, and most doctors began prescribing them for severe symptoms, and for short term use only. But many women were already suffering from the effects of the drug.

While Wyeth and Qualitest knew the danger associated with the drugs, they continued to encourage their improper use in an effort to make greater profit, Meadows said.

There have been other cases like this filed in Alabama, but they have all gone to the federal court system. This will be the first such case tried in Alabama, and Meadows said there will be many more.

September 5, 2005

Refugee Court

By: Mark Donald

Texas Lawyer

As if things weren’t bad enough for Merck & Co. Inc.

On Aug. 19, the drug maker was ravage by a legal maelstrom in the form of a $253.5 million verdict in its first-ever Vioxx related personal-injury suit. Ten days after the Brazoria County verdict, the company was rattled by a maelstrom of a more natural origin. Hurricane Katrina jeopardized U.S. District Judge Eldon E. Fallon’s ability to hear the first of the 1,811 federal Vioxx cases consolidated in the multidistrict litigation (MDL). The case is set for trial in the U.S. District Court for the Eastern District of Louisiana on Nov. 28– in New Orleans, of all places.

“Four other federal trials are scheduled in February, March, April and May,” said Kent Jerrell, a spokesman for the Merck defense team. “They are all single trials and are representative of the different kinds of Vioxx cases.” A telephone call to Andy Birchfield, the Montgomery, Ala., attorney who acts as spokesman for the plaintiffs’ trial team, was not returned before presstime.

Fallon has temporarily moved to the Houston Division of the U.S. District Court for the Southern District of Texas, where he has been given courtroom space and chambers, and from which he intends to manage the massive volume of cases in the Vioxx MDL, at least during the pretrial process.

“Actually, the MDL has not formally moved from New Orleans,” Jerrell says. “The most important thing is, within a week of the hurricane, there is a very aggressive discovery and pretrial process ongoing, and despite our lawyers who have lost their offices and their homes in New Orleans, the case is moving forward in Houston.”

Much of this is made possible by ther federal case management elctronic filing system, said David Bradley, chief deputy clerk for the Southern District of Texas. “Parties can file pleadings electronically from anywhere rather than filed them physically in Houston,” Bradley says. “ It is particularly efficient because the judge is here in Houston and can access the case, just as if he were sitting in New Orleans.

The trouble is, there are jurisdictional issues to actually trying the case in Houston or anywhere outside the Eastern District of Louisiana. Clearly the judge has authority to hear cases brough within his district, says Bradley. “But there is a legal prohibition against going outside the district and taking the cases with him.

After all, how could a Louisiana federal judge go beyond his or her territorial jurisdiction, and while sitting in Houston, empanel a Harris County jury to hear the case.

To expand the federal district and appellate courts’ authority to handle cases in emergency situations, on Sept. 7 the U.S. House of Representatives passed H.R. 3650, the Federal Judiciary Emergency Special Sessions Act of 2005. U.S. Rep. Louie Gohmert, R-Longview, was an original co-sponsor.

“We have been asking Congress to pass this legislation ever since Sept. 11, 2001,” Says Karen Redmond, a public affairs officer with the Administrative Office of the U.S. District Courts. “We needed a piece of emergency legislation to get some kind o f jurisdictional authority to hold court when there is no place to hold one.”

Spurred by the emotional impetus of Hurricane Katrina, the bill was carved out of the larger Federal Courts Improvement Act of 2005, which is still pending before a house committee. H.R. 3650 should face little opposition in the U.S. Senate, which is scheduled to fast-track bill.

The legislation provides that “Special sessions” of the district court may be held outside the district, if the chief judge of the district, among others, determines that “emergency conditions” make “no location in the district reasonable available.”

All of the court’s regular business can be conducted in the special session except criminal trials, which also can be conducted in the special session if the defendant consents. A judge presiding over special sessions can summon jurors from any part of the district in which the court ordinarily conducts business or from the district in which a special session is being held.

With or without the statute’s passage, the Vioxx MDL facing a daunting array of venue possibilities. Although the New Orleans district courthouse– the Hale Boggs Federal Building– suffered only minor damage in the hurricane, the devastation to the surrounding area makes a November trial virtually out of the question.

But the parties are engaged in the discussions with the judge and hope to reach an agreement on some of the thornier jurisdictional issues. “We are looking at Houma, which is just outside of New Orleans, Jacksonville, Florida and Houston,” says Jerrell, who remains hopeful the U.S. Senate will expedite emergency litigation. “I think everyone understands this is an unusual situation, and in one sense, because of the hurricane, it is unprecedented.

– Mark Donald