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Kaye Scholer Helps Secure Appeal Affirmation in Pfizer Hormone Therapy Litigation

October 28, 2011

Kaye Scholer has served as national counsel for Pfizer and its subsidiaries in the hormone therapy (HT) product liability litigation for more than seven years. Kaye Scholer was integral to a recent victory in the litigation, where the 8th Circuit affirmed the dismissal of several claims filed in the District of Minnesota by NY plaintiffs. A three-judge panel for the United State Court of Appeals for the 8th Circuit concluded that the district court below had properly applied the “Full Faith and Credit” statute to dismiss the Minnesota action after a prior grant of summary judgment dismissed the same claims as time-barred in New York.

The appellants had sued Upjohn, Wyeth and the other pharmaceutical companies in New York in 2004 and 2005, claiming that the companies' HT drugs caused them to develop breast cancer. After substantial discovery, the companies moved for summary judgment on the ground that the claims were time-barred under the three-year New York statute of limitations. The plaintiffs opposed the motion and simultaneously moved to voluntarily dismiss the New York actions. They then filed diversity actions asserting the same claims in the District of Minnesota, a state with a six-year statute of limitations.

The New York Court, however, in a lengthy opinion denied plaintiffs' motion to dismiss and granted defendants' motion for summary judgment, dismissing the NY claims as time-barred, with prejudice.

The defendants turned to Kaye Scholer Partner Lori Leskin to handle the Minnesota matters. Lori had previously led Pfizer's team in the Viagra litigation in the same Court and won a path-breaking Daubert decision in that litigation. Upjohn and Wyeth moved to dismiss the Minnesota actions on the basis of res judicata. Based on Leskin's argument, a federal magistrate dismissed the Minnesota actions, reasoning that the New York court's grant of summary judgment based on timeliness came close enough to determining the case’s actual merits to have preclusive effect in other jurisdictions. Plaintiffs first appealed to Federal District Judge Ann Montgomery. Again, based on Leskin's argument, Judge Montgomery agreed that the cases should be dismissed.

When plaintiffs appealed to the 8th Circuit, Leskin and her team again handled the briefing. Kaye Scholer then turned to Williams & Connolly partner Lane Heard for the argument, who had previous appellate success in the 8th Circuit. Williams & Connolly had served as Wyeth's national counsel from the outset of the litigation, and after Pfizer acquired Wyeth in 2009 the firm, Heard became an integral part of Pfizer's defense team.

“Our real strength, and strategy, in this big multi-law firm case, was our agility — having the right people handle the right things at the right time,” explained Kaye Scholer Partner William Hoffman , who also served on the litigation team. “As a New York practitioner who had important successes in the District of Minnesota in the past, Lori was the perfect person to argue the motion in the district court. She convinced the court to reject an incorrect interpretation of New York law. And then on appeal, we shifted to an attorney on our team who had been successful at handling key 8th Circuit appeals. Both Kaye Scholer and Williams & Connolly are part of Pfizer's Legal Alliance and the client expects its lawyers to function almost a single firm. This is an example of Pfizer's approach in unlocking value.”

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