Court upholds large verdict against drug company for girl permanently disabled after taking Children's Motrin
The Supreme Judicial Court today upheld a jury decision to award a South Shore teen and her parents $63 million in damages for the permanent injuries she suffered after being given several doses of Children's Motrin when she was 7.
Samantha Reckis's parents sued Johnson & Johnson, saying they never would have continued giving her the pain reliever in 2003 - or let her doctors give her even more - had they known the rash she developed after treatment for what initially seemed like a cold was a potential side effect of the drug that, in her case would turn into a life-threatening series of complications, many of them permanent.
At the time, the Children's Motrin warning label did not mention this.
The state's highest court rejected Johnson & Johnson's argument that a federal drug-labeling law for over-the-counter drugs preempted state lawsuits, saying the federal law has a section that specifically allows lawsuits over possible OTC side effects.
The court also rejected the company's argument that a key witness for the family - a pharmacology and toxicology professor - should not have been allowed to testify because he wasn't a medical doctor treating patients with the girl's symptoms. The court noted he had a doctorate in the field, had spent three decades teaching it and had authored numerous articles in the field and so was qualified as an "expert."
And the court rejected the drug company's claim that the jury verdict was excessive. In essence, the court said, the company's own lawyers blew it: The jury did not specify which part of the award was for future medical expenses, which for future loss of income and which for "pain and suffering" - and the lawyers didn't contest that at the time of the verdict, and now it's too late, the court said.
In any case, the court said it was disinclined to think the awards to Reckis and her parents - which with interest now total more than $100 million - were not just:
It is unnecessary to recount again a full litany of Samantha's injuries, but the most severe of her injuries bear repeating in evaluating the amount of the award. As a result of having TEN, the seven year old Samantha suffered lesions (blisters) all over her body and lost the top layer of her skin (over ninety-five percent of it), substantially the same as for a severe burn victim; she was hospitalized for six months, where she needed to be placed in a medically induced coma for a full month to deal with the pain; while in the hospital, she suffered liver and heart failure, a stroke, seizures, and a cranial hemorrhage, and had only twenty per cent of her lung capacity; upon discharge she was required to eat through a feeding tube for two years and required oxygen every night for the same period of time; at the time of trial, she weighed just eightytwo pounds as a sixteen year old; she is legally blind; her short-term memory is damaged; her lung capacity remains significantly impaired, and she will never be able to carry a child as a result; and she faces hospitalizations and limitations for the remainder of her life.
The company can now appeal the SJC ruling in the federal courts.
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Comments
Well, J&J can appeal to the
Well, J&J can appeal to the US Supreme Court, but it cannot really appeal to the other federal courts.
Why not?
Not being snarky here, but curious: What bars this from an appeal to a lower federal court, especially given the amount (I'd also be curious why J&J didn't remove this to federal district court in the first place) and the question on federal law.
It comes from Federal law -
It comes from Federal law - Article III of the constitution sets up the bulk of the Federal judiciary in the form of a Supreme Court and whatever other courts Congress might decide are necessary, and then Title 28 of the US Code sets up limits on Federal courts' authority pursuant to Article III. Chapter 81 of Title 28 grants the Supreme Court jurisdiction to hear appeals from states' highest courts, but Congress hasn't specifically granted a similar authority to lower courts, so as a matter of legal doctrine (basically, a procedural rule that comes from Supreme Court decisions recognizing this fact) they don't exercise it, even though they haven't been specifically prohibited by Congress from doing so. (There are some exceptions, I think, but I'm not super-clear on what they are.) I'm curious why this wasn't removed, too, but I suppose there could be several reasons and I'm not curious enough to go digging for the answer right now.
That poor girl
Such a horrible story. Any jury would award considerable damages from the pediatrician and first hospital too.
and the lawyer's didn't
Now if only we could apply that standard to ALL appeals.
Well, actually, it kind of is
I'm not a lawyer, so somebody who is, please correct me, but it seems like it's generally pretty hard to introduce a new issue in an appeal. Doesn't mean lawyers won't try, of course.
Please note
There are differences between CRIMINAL and CIVIL trials.
This is one of them.
That's how most appeals
That's how most appeals actually do work. Appeals are typically about finding "reversible error" in the trial court's process, and typically a lawyer has to have objected or made motions during the trial phrase, which were denied. Reading appeals/Supreme court opinions you'll see them many time reject arguments because they were not "preserved" for appeal; that's what they're talking about.
This case
is an example of the type of case the GOP and their legislative stenographers at ALEC have looked to stifle throughout the country. After all which is more important? American business "freedom from frivolous lawsuits", the Constitution, democracy, freedom, and original intent (dog whistle words for wing nuts) or this little girls permanent suffering?
Size of verdict
One issue I can see (the SJC's opinion notwithstanding) is the size of the verdict. $50 M for the girl and $6.5 M for each parent. Why those numbers? Why not $2 M, or $45 M, or $75 M, or $200 M? $63 M is just an arbitrary number the jury plucked out of the sky. All those millions won't change what happened, won't erase the scars, mentally or physically, won't make it all better.
(Note that the award was compensatory, not punitive; that is, to remedy the plaintiffs' harms, not to punish J&J.)
Jury instructions
perhaps.
Not really, this is a
Not really, this is a legitimate case vs. the tens of thousands of ambulance chaser cases clogging our courts and driving the cost of healthcare through the roof.
Tens of thousands?
Really?
You know this, how?
Motrin verdict
The was started and tried in a state court. Defendants could have moved it to the Federl court, they didn't,t. Their only appellate recourse is within the state court system.
Not about the money
With a market capitalization of $277 billion with a B $63 million or $100 million is a drop in the bucket. Maybe they just didn't want to lose, really thought they could win, or don't want to set a precedent for other cases, but the award is peanuts to them. They lost more money in the past 6 months as the dollar strengthened and affected their overseas business.
Question.....
Did J&J not know about this? Or did they know the possibilities and just didn't properly label the box? Horrible all around.
This is a bullshit suit.
This is a bullshit suit.
TEN is super awful, but also super rare, like 1 in a million individuals. It's caused when a genetically susceptible individual has a severe allergic reaction to a drug or an infection. There's no reliable genetic test to tell who's susceptible. There's no way to tell which drugs will cause TEN in advance. Literally hundreds of drugs, including every children's OTC fever reducer, have been linked to TEN.
I only skimmed the suit, and I didn't see any evidence that ibuprofen caused Samantha's TEN, rather than the infection she had that gave her the fever in the first place. That's not surprising; there is no scientific way to know for sure.