Last September, following a federal investigation into Allergan’s tactics in promoting Botox for off-label uses such as treating pain and headaches, the company pled guilty to a criminal charge of misbranding and paid $600 million in criminal and civil fines.
In a civil case brought against Allergan for personal injury damages due to the effects of Botox causing brain damage, the company was ordered to pay $200 million in punitive damages. However due to the statutory caps on punitive awards the jury’s award was reduced to $350,000
Punitive damages may be thought of as punishment damages that do not have reference to the extent of the victim’s personal injuries, but instead are damages against the wrongdoer that are supposed to punish the wrongdoer.
A punitive verdict of $350,000 is a joke for a company like Allergan. It negates the entire purpose of punitive damages which is to prevent these offenses from generally happening again. If this is indeed the goal of punitive damage awards, the question arises whether it makes sense for the legislature to set a cap which in essence limits the court’s ability to accomplish that goal. The answer is No. As a Virginia personal injury attorney I’ve seen companies that find it more cost effective to continue their bad behavior and risk paying punitive damages than to make any real change for the better.
This is precisely the decision making employed by the Ford Motor Company regarding its Pinto automobile. The company determined that it would be cheaper to sell the defectively designed car, and risk paying damage awards to injured consumers, than it would be to make the car significantly safer at a cost of $11 per car.
Given these facts, why do the proponents of this so called "reform" seek to protect reckless and malicious wrongdoers from bearing responsibility for their acts? Why do they attack jurors’ judgments in awarding punitive damages, when those very same jurors are trusted to put persons to death in capital cases?
Punitive damages should be neither limited nor abolished since it is only the award of punitive damages that has placed accountability where it belongs — at the door of the wrongdoer.
About the Editors: The Shapiro, Cooper, 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.