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$1.1 Billion (Yes, Billion) Verdict Against Pharmaceutical Manufacturer

Plaintiffs’ attorney John O’Quinn just won a $1.1 billion (yes, billion) jury verdict for the widower of a woman who took a diet drug. The verdict came in a wrongful-death suit against pharmaceutical manufacturer Wyeth.

About $ 900 million of that amount was punitive damages, making the ratio of punitives to actual damages approximately 9 to 1. Why didn’t this verdict violate Texas’s statutory cap on punitive damages? Attorney O’Quinn was quoted in this Associated Press story:

[O’Quinn] said Wyeth was negligent and “acted with malice in marketing of this drug by putting its making of money ahead of human life and safety.”

That’s an interesting use of the term “malice.” The Houston Chronicle’s story quotes O’Quinn as saying:

“This drug corporation knowingly sold and marketed a diet drug that it actually knew would kill some of the people that took it, and they never warned anyone against the risks,” O’Quinn said shortly after the verdict was returned.

* * *

. . . O’Quinn said the jury found that Wyeth had erased entries describing problems with the drug on “adverse drug event” forms it is required to file with the FDA.

“That broke the cap because if the jury finds the corporation committed a criminal act, the cap doesn’t apply,” O’Quinn said.

Reading between the lines, this might have been a situation where the jury decided that “the cover-up proved the crime,” i.e., that Wyeth’s alleged attempts to hide its problems amounted to proxy evidence of guilt.

According to the Chronicle, Wyeth says that the evidence doesn’t support more than about $1 million in actual damages and double that in punitives:

“[The decedent] Ms. Cappel Coffey, who was morbidly obese, a strong candidate for using diet drugs and had a family history of cardiovascular disease prior to taking diet drugs, did not develop PPH [primary pulmonary hypertension] symptoms until more than four years after she stopped using Pondimin,” lawyer Bill Sims said in a news release posted on the Web site. “There is absolutely no basis in the record for the amounts awarded.”

It will be interesting to read in the legal newspapers, over the next few days, just what evidence on the malice issue was actually presented to the jury. I wonder how the verdict will stand up in post-trial motions and on appeal.

UPDATE: The New York Times’s article adds these details:

But Wyeth said that Ms. Cappel-Coffey’s condition might have been caused by something other than fen-phen. In the company’s statement, Mr. Sims said that Ms. Cappel-Coffey “did not develop P.P.H. symptoms until more than four years after she stopped using” one of the two drugs that make up fen-phen, sold under the name Pondimin. He continued, “There are no studies that demonstrate an association between Pondimin use and an increased risk of P.P.H. that long after cessation of use.”

Mr. Sims also said in the statement that the court had not permitted the company to present evidence that might have suggested that the damage to her lungs had been caused by another diet drug. The court excluded evidence that Ms. Cappel-Coffey used four other diet drugs after she took Wyeth’s Pondimin, he said.

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