A Virginia man received Botox injections to 2007 to treat a hand tremor and writer’s cramp. The first two treatments went smoothly; after the third injection he suffered a rash, then mental confusion that progressed into brain damage, leaving him totally disabled and requiring round-the-clock care. He is unable to walk, talk, dress, feed himself or go to the bathroom. He and his wife do not have health insurance; they must rely solely on Veteran’s Administration benefits.
In a lawsuit, the plaintiff alleged that Allergan (Botox’s manufacturer) failed to warn his doctor about the risks of Botox. Evidence presented showed that prior to July 2007, Allergan sent a letter to European doctors warning of the dangers of Botox, but never disclosed these warnings to doctors in the United States (the company’s largest market) apparently that Botox can spread outside the injected muscle and cause severe auto-immune responses and brain injury. Instead, Allergan has publicly stated that Botox is a miracle drug and has often compared it to penicillin. Side effects are rarely mentioned and consistently understated.
Although Botox was FDA approved for treating hand tremors and writer’s cramp, Allergan has a checkered history when it comes to Botox marketing. The company previously agreed to a $600 million settlement with the U.S. Justice Department for illegally promoting the off-label use of Botox and encouraging physicians to use Botox for non-FDA approved uses.
After a two week trial, the jury awarded a $212 million verdict; $12 million in compensatory damages and $200 million in punitive damages. The victim was unable to comment after the verdict, but his wife made a powerful statement: "I’m so happy. I thank God almighty for giving me great attorneys; caring, honest doctors; and a fantastic jury that paid attention to the case."
Now for the real injustice in this case; the plaintiff will never collect the full $200 million punitive damages award because of Virginia’s $350,000 punitive damages cap. The plaintiff’s attorney said, Even if we never collect [the full punitive damages], it’s the thought that counts. The jury sent a very loud message.” How would you like to be told that although you were awarded $200 million, you will only receive $350,000 due to ridiculous damages caps? After all, this man was permanently disabled at the hands of a blatantly negligent drug manufacturer. Allergan is considering an appeal; if that happens, the plaintiff’s attorney plans to attack the constitutionality of Virginia’s $350,000 punitive damages cap.
Lawsuits play an important role in our society; they save lives and improve safety by punishing manufacturers of unsafe products and practices. The jury punished Allergan for intentional negligence; remember, it warned the European medical community back in 2007. When manufacturers harm innocent victims, hitting these negligent or grossly negligent manufacturers in the pocketbook is the only “punishment” they understand. Lawsuits send a strong message to drug manufacturers, and business in general, that it is financially unwise to cut corners or ignore safety concerns.
The truth is that it takes a serious injury, one that none of us would want, one that has catastrophic consequences, to enable a litigant to obtain a “high” award. There is no “jackpot justice” or “lawsuit lottery”. There is only “justice” and just compensation. If you were severely injured and could prove who was responsible in court, how much would the destruction of your good health be worth? Put yourself in this Virginia man’s position; spend one day caring for him as his wife does. For what amount of money would you trade your health? Ponder that, answer that, and then pass judgment on the justice received in this case, and others like it. Dangerous drugs that kill and disable are not a “frivolous” matter. Serious injuries and permanent disabilities have life-long, expensive consequences. Why does this billion dollar industry deserve total protection? Attempts to cap serious lawsuits are an injustice to all citizens leaving taxpayers to foot the bill for the responsible drug manufacturer and the private insurance company that profited from the premiums and accepted the risk. In my state, Michigan, this unfortunate individual would have received nothing! You see, in Michigan, the drug industry enjoys total immunity from suit; as long as it product is FDA approved. How many of you support that injustice?
In many other states, tort reform has virtually eliminated punitive damage awards in many States. Without having to worry about potential large damage awards, corporate interests will put profits ahead of safety, every time. Tort reform is essentially a "free pass" for the drug manufacturer. While it certainly may assist in producing higher company profits, clearly, tort reform does so by putting the safety and constitutional rights of individual citizens in peril. How any individual citizen can support tort reform or tort reform candidates in light of these sobering conclusions is beyond comprehension!
None of us would trade places with this victim; none of us would trade our good health for money. The money simply assists the disabled, seriously injured victim in getting by. To all those who cry “lawsuit abuse” and push for “tort reform”, as much as you continue to deny it, lawyers advocate for those who cannot advocate for themselves. They pursue justice for those who find themselves under attack from corporate wrongdoers who have more resources to deny, delay, and defend. Lawsuit Financial is pleased that this plaintiff was thankful to the trial lawyer that worked on their behalf to see justice served; We are saddened that tort reform prevented real justice (as determined by a jury of his peers) from prevailing in this case.
Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association as well as their ABA Advisory Committee, the State Bar of Michigan and the Injury Board.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.