Family alleges mother's death caused by hormone replacement therapy

Michelle Massey, East Texas Bureau Jan. 6, 2010, 2:00am

TYLER – The family of a deceased Texas woman claims her death was caused by the use of hormone replacement drugs and is suing the drugs' manufacturers for concealing the risks.

Ernest Joe Whatley, independently and as estate representative of Delores Ann Spann Whatley, and her heirs, Christopher Scott Whatley and Tara Shea Whatley Howington, filed a product liability lawsuit against Wyeth, Pfizer, Pharmacia and Upjohn Co. and Watson Pharmaceuticals.

The suit was first filed on Nov. 25 in the 114th Judicial District Court of Smith County. The defendants removed the case on Dec. 29 to the Tyler Division of the Eastern District of Texas.

Used to treat the physical symptoms of menopause, drugs used for hormone replacement therapy contain estrogen and synthetic progestin. The drugs are prescribed to women experiencing symptoms including mood swings, hot flashes, loss of bone density, depression, irritability, night sweats and forgetfulness.

The plaintiffs claim that the HRT drugs pose a substantial health risk with little or no corresponding benefits.

Some of the alleged risks associated with combination hormone therapy include breast cancer, ovarian cancer, heart attacks, strokes, deep vein thromboembolism, pulmonary embolisms, gallbladder cancer and non-Hodgkin's lymphoma.

The lawsuit argues that since the drugs were first approved in 1942, the defendants' vigorously and aggressively marketed the drugs by sponsoring medical journal articles, hiring experts to speak to physicians and direct advertisements to consumers and physicians.

"Through a massive decades-long marketing and advertising campaign, Wyeth convinced doctors and the public that menopause is a disease requiring drug treatment rather than the natural process of aging," the plaintiffs state.

The plaintiffs accuse the defendants of not studying, purposefully concealing, not disclosing, misstating, downplaying or understating the health risks associated with the use of their drugs.

"Defendant minimized the risks of these drugs to the prescribing physicians and ultimate users while simultaneously exaggerating the purported benefits," the petition argues.

The complaint asserts the defendants are liable for claims of violating state consumer fraud acts, negligence, strict products liability, defective products, defective marketing, inadequate warnings, negligent misrepresentations, intentional misrepresentation, fraud and breach of express and implied warranty.

The defendants deny all negligent claims and continuously argue that since first marketing of the hormone replacement drugs they carried warning labels regarding certain elevated risks.

The hormone replacement drugs remain FDA-approved for treatment of menopause and post menopausal osteoporosis.

Other allegations against the drugs' manufacturers include assault and battery, negligent and intentional infliction of emotional distress.

The Whatley family is seeking damages for loss of love, affection, service and support and medical and funeral expenses.

Seeking punitive damages, the plaintiffs argue that the defendants' actions were conducted with malice, fraud and a reckless disregard for the rights of others.

The plaintiffs are asking the court to award an amount that would punish the defendants and deter other manufacturers from similar actions.

Jury trial is requested.

Houston attorney Erick B. Walker of Hissey, Kientz and Herron PLLC is representing the plaintiffs.

U.S. District Judge Leonard Davis will preside over the litigation.

The lawsuit will be transferred to the pending multidistrict litigation in the Eastern District of Arkansas for discovery and pretrial proceedings (In re Prempro MDL 1507).

A similar case, Scroggin v. Wyeth, is scheduled to have a punitive damages re-trial in early February. In the original trial, plaintiffs' attorneys Brent Coon and Associates were able to secure a $29.7 million verdict for breast cancer survivor Donna Scroggin. However, a federal judge threw out the $27 million punitive damages award over concerns of expert testimony.

Case No 6:09cv00571

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