Freeman v. Wyeth – Eighth Circuit Upholds Dismissal of Prempro Lawsuit

A plaintiff attorney’s failure to register for the multi-district litigation’s case management/electronic case file system resulted in the dismissal of the plaintiff’s case against the makers of menopause drug Prempro. The decision was recently upheld by the U.S. Court of Appeals for the Eighth Circuit in Freeman v. Wyeth, et al..
The disappointing conclusion is why our product liability attorneys in Massachusetts always stress these types of cases require a legal team with experience and proven success. We are experienced with multi-district litigation involving pharmaceutical firms, and remain committed to excellent representation of our clients’ interests from beginning to end.

In the Freeman case, the plaintiff filed her lawsuit in early 2009 against Wyeth Pharmaceuticals Inc. She alleged she developed breast cancer after using a drug called Prempro, which is used to treat certain symptoms of menopause.

Shortly after the case was filed, the defendant company removed the case from state court to the U.S. District Court for the Southern District of New York. Not long after, the case was transferred to the Eastern District of Arkansas as part of the ongoing In re Prempro Products Liability Litigation that started in 2003.

A docket for this individual case was opened by the clerk in May 2009, and the clerk also filed a docket memorandum instructing plaintiff attorney to electronically file documents and file for electronic registration. Lawyers who did not do so would not receive notices or hard copies of relevant orders.

Nothing was posted to the individual docket until November 2012, when an order was issued designating the case for discovery. The district court instructed the plaintiff to provide updated medical authorizations within three weeks, or risk a dismissal for failure to prosecute. The warning was addressed to “ALL CASES.”

In January 2014, defendant moved to dismiss the Freeman case for failure to prosecute because her attorney hadn’t heeded this warning. The motion was granted.

It was not until nine months later that the plaintiff attorney filed a motion to set aside the dismissal. He said that while he had monitored the case, he had not signed up for the electronic notifications, as required. The district court denied his request, and the decision was upheld by the U.S. Court of Appeals for the Eight Circuit. The appellate panel called it “unfortunate” that the plaintiff would not receive her day in court on account of “her attorney’s apparent professional carelessness.”

The panel went on to say it generally prefers dispositions reached on merit rather than default. However, that interest has to be weighed with the unique problems associated with multi-district litigation, where there are hundreds of attorneys representing thousands of clients. That means the court is given greater discretion to create and enforce deadlines, particularly where litigants fail to follow explicit directives.

The dismissal is indeed troubling for the fact that, through no fault of her own, the plaintiff will be denied the opportunity to hold this drug manufacturer accountable. A recent Canadian study revealed the drug, produced by Wyeth which is now owned by Pfizer, is causally linked to breast cancer. The report indicates hormone replacement therapy was listed as the primary risk factor in approximately 12,000 new breast cancer diagnoses between 1994 and 2006.

If you are the victim of Massachusetts product liability, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.

Additional Resources:
Freeman v. Wyeth, et al., Aug. 13, 2014, U.S. Court of Appeals for the Eighth Circuit
More Blog Entries:
Removal of Vaginal Mesh Can Have Long-Term Consequences, June 4, 2014, Boston Product Liability Lawyer Blog

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