Botox Maker Hit with $200 Million Punitives Award, But Award Subject to State’s Cap

A federal court jury in Richmond, Virginia, recently ordered drugmaker Allergan, Inc. to pay a staggering $212 million to a 67-year old man who said he suffered brain damage as a result of receiving Botox injections to treat cramps and tremors in his hand in 2007. Ray v. Allergan, Inc., 3:10-cv-00136 (E.D. Va. April 28, 2011). The plaintiff reportedly alleged in his suit that Allergan failed to warn him that Botox injections could trigger an autoimmune reaction that could cause brain damage. He alleged that the injections caused severe medical complications which resulted in total disability and $643,800 in medical costs. He reportedly alleged in his complaint that the drug left him “frequently confused or disoriented,” and that Allergan did not sufficiently warn doctors or patients of the possibility over fear of losing sales.

Bloomberg.com reports that the jury’s award includes $12 million in compensatory damages, and an additional $200 million in punitive damages. Botox is Allergan’s top-selling drug, accounting for $1.42 billion in sales last year alone, which was 29 percent of the drugmaker’s revenue. Perhaps the jury thought that such huge numbers in revenue justified a huge punitive award. Interestingly, however, by Virginia statute, the punitive damages award will be capped at $350,000. The statute further provides that although the jury is not to be made aware of the cap, the trial court is to reduce the award in accordance with that law. Allergan’s spokeswoman has said the company has not yet decided whether to appeal the verdict, but if it does, attorneys for the plaintiff plan to “attack the constitutionality of the cap.”

This is not the first big award handed down against drugmaker Allergan. Last May, we reported here on a $15 million verdict in favor of an Oklahoma doctor who similarly alleged she suffered injury from Botox as a result of the maker’s failure to provide sufficient information regarding possible side effects. In that instance, Allergan vowed to appeal the verdict. It remains to be seen whether in this instance Allergan will take the benefit of Virginia’s punitive damages cap and pay, or whether it plans to similarly appeal the most recent verdict.

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