So far, victories are few as breast cancer patients sue Wyeth over hormone therapy.

There is no question that use of combination hormone therapy is associated with an increased risk of developing breast cancer in the population — that was clear in 2002 when the Women’s Health Initiative (WHI) study was halted. But whether the hormone treatment can be proven to have caused cancer in an individual woman who develops the disease is now being played out in courts around the country. As of November, the pharmaceutical company Wyeth is listed as a defendant on 5,300 cases fi led by 7,900 plaintiffs. The company manufactured the best-selling hormone replacement agents Premarin, an estrogen supplement, and Prempro, which contains estrogen and progestin. Other companies such as Pfi zer and Upjohn, which produced different brands of hormone replacement therapy (HRT), are also being sued, but as the largest maker of these drugs, Wyeth has become the prime target for personal injury and drug product liability attorneys. No one knows how far these cases will go or how many will ultimately be fi led. The potential liability may be great, given that 6 million women were using the combination hormone replacement when the WHI’s study of Prempro was halted, according to the National Institutes of Health, the study’s sponsor. These cases are also unusual because, unlike the diet drug Fen-Phen, which Wyeth also manufactured, Prempro is still on the market. Wyeth maintains that the risk of developing breast cancer has always been stated in patient information for both hormone replacement drugs. But the cases boil down to whether a lawyer can convince a jury that a drug caused a person’s illness. With Fen-Phen it was clear; not so with Prempro. Law professors watching the HRT litigation say that so far Wyeth may be winning the judges over, but the wildcard will be the hearts and minds of jurors if a case gets to trial. “Juries are some times willing to buy the argument that ‘I have breast cancer. I took Prempro. I am a good person. Therefore, it must be Prempro’s fault,” said Brooklyn Law School professor Anita Bernstein, J.D. Since this litigation began in 2006, 21 lawsuits against Wyeth have been decided, although appeals may be forthcoming. Only six have gone to court — 12 were dismissed before trial even began, and three judges issued summary judgments in favor of Wyeth before they saw a jury. Juries have been split. Four found in favor of Wyeth, and four others agreed with the plaintiffs: women with breast cancer. But of these four, three with awards between $1 million and $3 million were either overturned by presiding judges or dismissed for other reasons. The two latest decisions illustrate the split between how judges and juries seem to view these cases. In mid-October, a Nevada jury awarded $35 million in compensatory damages to three women who blamed their breast cancer on Wyeth’s hormones — and then slapped an additional $99 million on top of that for punitive damages because of the company’s “reprehensible” actions. One of the plaintiffs, 67-year-old Arlene Rowatt of Nevada, told the Associated Press, “We got our message out that there are a lot of women out there who are being injured by this kind of behavior.” Wyeth has said that it will appeal. Later that month, a state district court judge in Minneapolis granted Wyeth’s motion to toss out a different case fi led by a breast cancer patient who had used hormone replacement for 20 years. In a ruling that excluded the plaintiff’s expert testimony, District Court Judge George F. McGunnigle said that breast cancer is “unlike toxic exposure, food poisoning, accidents, and many other kinds of causes that cause ailments with a rapid onset and peculiar symptoms.” He added that there is no scientifi c method that can allow a doctor to determine, in hindsight, the cause of breast cancer in an individual woman and that “even if HT [hormone therapy] can cause some breast cancers, plaintiff cannot demonstrate that HT did cause her particular cancer.”