Botox Maker Wins New Trial in Virginia Case That Yielded $212M Brain Damage Verdict

A faulty product lawsuit brought in Richmond, Virginia (VA), made international headlines in April 2011 when a federal civil trial jury awarded a disabled permanently man $212 million. Jurors determined that Allergan, which makes and markets the prescription-only injection medication Botox (onabotulinumtoxinA), failed to adequately warn doctors and patients about debilitating and potentially fatal side effects including strokes and brain damage.

The man had received Botox shots to release frozen muscles in his wrist and hand. Normally thought of only as a treatment for facial wrinkles, Botox is approved by the U.S. Food and Drug Administration to relieve abnormal muscle cramping and other medical conditions.

Shortly after being treated, the man suffered a stroke and experienced irreversible brain damage. He lost his ability to speak and will need around-the-clock medical and personal care for the rest of his life.

Allergan immediately protested the verdict, claiming that its product was not the cause of the man's stroke and that caps on punitive damages in Virginia medical malpractice cases made the judgment unenforceable. Jurors set punitive damages at $200 million; state law permits successful plaintiffs to collect only $350,000 for punitive damages–the form of civil damages designed to punish improper conduct.

The drugmaker also promised to challenge the jury verdict, and on June 1, 2012, Allergan succeeded in having a U.S. District Court judge suspend the plaintiff's award and grant a new trial. Judge Robert E. Payne noted that product labeling for Botox could not contain a stroke warning unless the FDA allowed Allergan to include such language. He also specified that the punitive damage cap would apply even though the brain-damaged man's attorney had argued that Botox was a faulty product and had not made medical malpractice claims.

Two other things Payne considered when approving Allergan's arguments for a new trial were statements and gestures made by the plaintiffs' lawyer during closing arguments of the first hearing. Specifically, the judge expressed concerns over whether the attorney misled jurors by using his hands to symbolize a " box" shape with his hands while talking about label warnings. The judge had ruled the lawyer could not discuss black box warnings, because such warnings cannot be added to a medication box without FDA approval-so the Judge ruled it would be improper for the victim to claim the need for box warnings–as opposed to some other form of general warnings.

The judge reviewed a courtroom surveillance video to confirm the attorney's gestures–which he stated in the opinion he had not noticed during the actual trial. This may be a first in a federal court's opinion–a retrospective analysis based on courtroom video partly served as a basis for the grant of a new trial!

Payne also stated that rhetorically asking jurors things like "Can you imagine the horror …" allowed the permanently disabled man's attorney to improperly influence jurors. Payne determined that the lawyer impermissibly employed a "golden rule" argument, leading jurors to put themselves in the plaintiff's shoes. Many states bar attorneys from making golden rule arguments, but the victim's lawyer did not clearly violate this rule.

As a Virginia personal injury attorney who has helped many people injured by dangerous and faulty products hold manufacturers accountable, I question the judge's reasoning. First, Virginia has a terribly restrictive punitive damages cap, so the victim was not going to receive but 350,000 of the punitive damages portion of the verdict anyway.

The Virginia Supreme Court has not yet ruled on the constitutionality of the punitive damages cap, but one federal appeals case turned back a challenge. I believe that any cap on punitive damages is unconstitutional because it violates citizen's rights under the Seventh Amendment to the U.S. Constitution. Statutorily limiting monetary damages prevents juries from ruling on damage awards as they would under common law, which set no ceilings or caps on compensation amounts.

Second, I make it my business as an ethical attorney to study and follow general and trial-specific rules on closing arguments. The actions and statements called out by the judge as being potentially improper were close to the ethical line, but probably did not cross it.

Walk into any courtroom in America, and you will see and hear practically identical things from lawyers representing defendants and plaintiffs. Attorneys advocate for their clients using all legal and ethical means at that command. Honest attorneys go right up to the limit of what is allowed without breaking the rules.

The very nature of tort law — trials for injuries and wrongful deaths — requires that jurors hear persuasive oratory from clients' representatives. If one attorney is more successful at swaying a jury, then, as the system is designed, he or she should win the case. This is not always the outcome, but the system is sound. The judge in his opinion struggled to find precedents that showed that the attorney's "imagine the horror" argument was truly improper argument.

Last, and most importantly, jury verdicts should only be set aside in rare and extraordinary circumstances. What seems to have happened here is that Allergan obtained a second trial simply because the company's initial defense failed. In the absence of convincing evidence of misconduct by the plaintiff's attorney or obvious legal errors, a new trial should not be granted. Here, the judge granted the new trial on the basis of the hand gesture's and that the victim's attorney made "golden rule" arguments in his closing statement to the jury.

In my opinion, as a victim’s attorney, the Botox victim’s attorney played by the rules and clobbered the company’s attorney and their defenses. Juries see throught smoke screens quickly. It's a shame that courts search for ways to rule that a properly empaneled jury verdict should not stand. When a judge grants a new trial, the ruling may not be appealable until after a completely new trial occurs. Only then, can either party attack the second or the first trial rulings.

I find myself wondering why judges are just uncomfortable upholding large compensatory and punitive awards from juries. With political pressure to curtail so-called "jackpot justice" and limit "frivolous lawsuits" increasing year by year, it's worth wondering if some judges struggle enough with decisions to grant new trials to corporations that lose cases after a fair trial before an impartial jury. Ultimately, it dilutes the sanctity of jury verdicts.

EJL

About the Editors: The Shapiro, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.