Dateline: Fredricksburg, Virginia
$212 million was awarded 2 weeks ago for damages related to Allergan's Botox, a drug used for muscle spasms, migraines, and neural issues, in addition to its well-known cosmetic purposes.
Douglas Ray, Jr., 67, of Virginia, "claimed injections of the wrinkle-smoothing drug Botox to treat hand tremors and writer’s cramp left him brain-damaged and disabled" in 2007.
In response, the company spokesman for Botox's manufacturer, Allergan, claimed that reliable medical and scientific test results dispute the charges. The drug's strong history of treating 21 different medical conditions speaks for itself. Additionally, Allergan is known to warn about all risks associated with Botox, she said.
Still, it was a letter sent from Allergan that tilted the case against them. The federal jury was presented with a cautionary letter that was sent to Europe in mid-2007, warning of the dangers of Botox. Allergan specifically did not send this letter to U.S. doctors "because they didn’t want to hurt sales in their biggest market." Had they sent the letter, it was argued, Allergan may have warned Americans that Botox could lead to an autoimmune reaction that might have spurred brain damage. A month later, Ray Jr. was ill.
Douglas Ray, Jr., lives with his wife and requires regular care. He has a personal home attendant 16 hours per week. He was awarded $12M in compensatory damages and $200M in punitive damages. The cap in Virginia, however, is $350,000 for punitive damages. Ray's lawyer is set to challenge the cap. Allergan has yet to determine whether it will appeal.
Botox is Allergan's highest-selling drug, accounting for about 29% of its revenue. Allergan's stock price took a hit of 13 cents the day of the verdict. This only goes to show that even if it is in pharmaceutical company's best interests to inform the consumer, it is not always the case that it does.
In New York, it is difficult if not impossible to obtain punitive damages in medical malpractice cases. The reason? We have to show almost that the carelessness or wrongdoing was intentional in order to seek punitive damages. Carelessness by its' very definition is synonymous with 'negligence' or neglect. That alone does not rise to the level where punitive damages would be warranted in NY.
If you would like more information about how medical malpractice and accident cases work in the state of New York, I encourage you to explore my educational medical malpractice and personal injury website. If you have legal questions, I urge you to pick up the phone and call me at or by e-mail at to answer your questions. That's what I do every day. I welcome your call.
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