Class Upheld in Hormone Replacement Therapy Consumer Suit

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By Julie A. Steinberg

Oct. 13 — Class certification was upheld in a California consumer suit by women who allege Wyeth Inc. engaged in a systematic, deceptive campaign to promote hormone replacement therapy drugs while downplaying the risk of breast cancer.

The plaintiff class is ascertainable, and common issues predominate over individual ones, Judge John A. Houston of the U.S. District Court for the Southern District of California said.

April Krueger alleged that since the 1990s, Wyeth and Wyeth Pharmaceuticals Inc. deceptively promoted Premarin, Prempro and Premphase for non-approved, off-label uses including the prevention of cardiovascular disease and dementia.

Krueger raised claims against the defendants under the California Consumers Legal Remedies Act and Unfair Competition Law. A class was initially certified in 2011.

Here, the court denied a defense motion to decertify the class, and ruled on other pending motions.

Misrepresentation is Central Issue

The central issue of this case is “the allegedly overriding, material misrepresentation that defendants' HRT products lower a woman's risk of cardiovascular disease, dementia, and Alzheimer's disease, without increasing breast cancer risk,” the court said.

Krueger has submitted evidence showing that this misrepresentation was communicated by the drugs' packaging and by doctors who were influenced by the defendants' “Dear Doctor” letters and by statements from sales representatives, the court said.

Systematic Campaign

The plaintiff has presented evidence that HRT users and prescribing physicians were systematically exposed to the defendants' material misrepresentations during the class period through the defendants' massive advertising campaign, the opinion said.

Plaintiff has identified drug labels, advertisements and marketing materials that comprised the campaign. She has also presented evidence establishing that HRT users were exposed to the same product representations on a classwide basis. the court said.

Individualized proof of deception and reliance aren't necessary under California law to prevail on class claims, the court said. It's enough for a court to reasonably assume that no rational class member would have purchased the product had the individual known of the alleged misrepresentation.

The court said it earlier found that the defendants had launched a massive “Tobacco-II-style advertising campaign to inform users and prescribing physicians about the purported benefits of HRT drugs.”

The court referred to In re Tobacco II Cases, 46 Cal. 4th 298 (2009) in which the California Supreme Court said proof of individualized reliance on specific misrepresentations isn't necessary where the misrepresentations were part of an extensive advertising campaign.

Given their exposure to this campaign, HRT class members need not plead specific reliance on any individual misrepresentations, the court said.

Modified Class Definition

And the court found that modifying the initial class definition, to remove a requirement that class members were exposed to Wyeth's alleged misrepresentations, was appropriate.

The defendants here directed and exercised full control over the messages and representations made by all company personnel and third parties in promoting the defendants' HRT drugs as part of their massive advertising campaign, the opinion said.

The new class definition is: “All California consumers who purchased Wyeth's Hormone Replacement Therapy products, Premarin, Prempro and Premphase, for personal consumption between January 1995 and January 2003, and who do not seek personal injury damages resulting therefrom.”

Kaye Scholer LLP and others represented Wyeth.

Beasley, Allen, Crow, Methvin, Portis & Miles, PC and others represented the plaintiffs.

To contact the reporter on this story: Julie A. Steinberg in Washington at mailto:%20jsteinberg@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

The opinion is available at http://www.bloomberglaw.com/public/document/Krueger_v_Wyeth_Inc_No_03cv2496_JAH_MDD_2015_BL_331359_SD_Cal_Oct.