244 P.3d 765 (Nev. 2012)
In 2004 Arlene Rowatt, Pamela Forrester, and Jeraldine Scofield each filed personal injury and strict products liability suits against Wyeth and Wyeth Pharmaceutical, Inc. in Nevada district court.1 Rowatt and Scofield had taken Wyeth's Premarin with a separate progestin pill or the combination pill Prempro for seven and fourteen years respectively while living in other states.2 They moved to Nevada where they continued the medication and were later diagnosed with breast cancer.3 Forrester, a Nevada resident, took the drugs for nine years before her diagnosis.4 The three cases were consolidated and set for a bifurcated trial because the women also sought punitive damages.5
Trial evidence included Wyeth internal documents from the 1970s showing knowledge that tumors responded to hormones.6 A 1983 FDA rejection of Wyeth's application to market the estrogen-progestin combination without a large long-term safety study occurred.7 Wyeth viewed such studies as too costly.8 Wyeth had a company policy against supporting breast cancer studies.9 Independent studies published from 1989 onward in journals such as the New England Journal of Medicine linked the combination to increased breast cancer risk.10 Wyeth sponsored ghostwritten articles that minimized the risk.11 The 2002 Women's Health Initiative study was halted after showing elevated invasive breast cancer rates.12 The women testified about their hormone therapy histories.13 They described mastectomies or lumpectomies, lymph node removals, chemotherapy or radiation.14 They expressed ongoing fear of recurrence.15 They stated that they would not have taken the drugs had they known the breast cancer risk.16 Wyeth presented evidence of other risk factors such as age, breast density, smoking history, and prior biopsies.17 Wyeth offered testimony that the cause of breast cancer remains unknown.18
The jury returned verdicts totaling $134.6 million in compensatory damages and found that Wyeth had acted with malice or fraud.19 The district court discovered the jury had prematurely awarded punitive damages in the first phase, denied Wyeth's mistrial motion, reinstructed the jury, and required redeliberation on compensatory damages only.20 The jury then returned $35.1 million in compensatory damages and, after a separate punitive phase that included evidence of Wyeth's financial condition, awarded $99 million in punitive damages.21
Wyeth moved for judgment as a matter of law, a new trial, or remittitur. The district court denied the first two motions but granted remittitur, reducing compensatory damages to $23 million and punitive damages to $57,778,909, which the plaintiffs accepted.22 Wyeth appealed to the Nevada Supreme Court.23
Whether the district court erred in determining that Nevada law applied to the claims of respondents Rowatt and Scofield because they were diagnosed with breast cancer in Nevada?24
Nevada has adopted Restatement (Second) of Conflict of Laws section 146.25 Under that section, the law of the state where the injury occurred governs unless another state has a more significant relationship to the tortious conduct and the parties.26 For slow-developing diseases such as cancer, the place of injury is the state where the disease is first ascertainable.27 That diagnosis constitutes the last event necessary for a claim against the tortfeasor.28
No. The established facts show that Rowatt and Scofield took the drugs for years in other states yet moved to Nevada, continued the medication there, and received their breast cancer diagnoses in Nevada.29 Those diagnoses supplied the final element required to assert a claim.30 Wyeth presented no evidence that any other state possessed a more significant relationship to the injuries or the parties.31
The district court did not err in applying Nevada law to the claims of Rowatt and Scofield.32
Whether the district court abused its discretion when it gave a substantial-factor causation instruction rather than a but-for causation instruction and when it subsequently modified the instruction?33
A but-for causation instruction is required when each party advances a mutually exclusive theory of causation and the injury could result from only one of those theories.34 A substantial-factor instruction is appropriate when an injury may have had two causes either of which alone would suffice.35 District courts possess discretion to adapt pattern instructions to the evidence presented at trial.36
No. Although the parties presented mutually exclusive causation theories and the evidence therefore supported a but-for instruction, the instructional error was harmless because the WHI study, the hormone-receptor-positive tumors, and the women's long-term use of the drugs supplied substantial evidence that Wyeth's products caused the cancers.37 The modification substituting the term promotion for bringing about was consistent with the scientific testimony and therefore fell within the district court's discretion.38
The district court did not abuse its discretion in a manner that warrants reversal.39
Whether the compensatory and punitive damages awards are supported by substantial evidence and are excessive even after the district court reduced the amount of the awards?40
A damages award supported by substantial evidence will be affirmed.41 Compensatory awards for pain and suffering lie within the jury's province and are reduced only when they shock the conscience.42 Punitive damages require clear and convincing proof of malice and are reviewed under due-process guideposts of reprehensibility, ratio to compensatory damages, and comparable civil penalties.43
No. The established facts demonstrate that Wyeth possessed internal knowledge of hormonal effects on breast tissue since the 1970s, declined to conduct required long-term studies, sponsored ghostwritten articles minimizing risk, and promoted the drugs for unapproved benefits.44 This evidence supports the jury's malice finding and the resulting compensatory and punitive awards.45 After remittitur the awards remain proportionate, rest on substantial evidence, and do not shock the conscience.46
The compensatory and punitive damages awards are supported by substantial evidence and are not excessive.47