| June 1
June 1 Allergan Inc has been granted a
new trial in a case brought by a man who won a $212 million jury
verdict last year after claiming he was disabled by taking Botox
Douglas Ray Jr's jury award had already been slashed to less
than $13 million total under Virginia state law, and now, after
a federal judge's ruling on Friday, he will have to make his
case all over again.
Ray accused Allergan of failing to warn doctors of the risk
that Botox injections could cause autoimmune reactions that lead
to brain damage. Ray alleged that he suffered a severe reaction
that left him completely disabled after receiving Botox
injections to treat a movement disorder in his right hand -- an
off-label-use for the wrinkle-smoothing drug.
In April of last year, jurors in U.S. District Court in
Richmond, Virginia, awarded Ray $12 million in compensatory
damages, along with $200 million in punitive damages that were
later reduced to $350,000 due to a cap under Virginia law.
But Judge Robert Payne ruled Friday that Allergan deserved a
new trial because it should have been made clear to the jury
that the company could not add a so-called "black-box" warning
to Botox packing inserts on health dangers without prior
approval from the U.S. Food and Drug Administration.
"This was prejudice on a core issue respecting Allergan's
liability, and the only remedy for it is a new trial," Payne
Ray's lawsuit, filed in 2010, was one of at least four that
have gone to trial as Botox users sued Allergan for personal
injuries, or in one case, a wrongful death. Several of the
lawsuits focus on off-label uses of the drug.
Allergan agreed in September 2010 to plead guilty and pay
$600 million to resolve a federal investigation into its
off-label promotion of Botox. The Justice Department accused
Allergan of illegally promoting the drug to treat headaches,
pain, spasticity and juvenile cerebral palsy -- uses that had
not been approved by the FDA.
Ray Chester, a lawyer for Ray, said he was "disappointed in
the decision, obviously."
"We thought it was a good verdict and should have stood,"
said Chester, of the law firm McGinnis Lochridge & Kilgore.
Cathy Taylor, a spokeswoman for Allergan, said that while
the company "is sympathetic to Douglas Ray and his family, we
are pleased that the U.S. District Court in Virginia granted
Allergan's motion for a new trial and we look forward to
re-trying the case."
A hearing in the case was expected for June 9. The judge
also ordered the parties to schedule a settlement conference.
Allergan has had mixed results in the cases that have gone
to trial. A state court jury in Santa Ana, California, ruled for
Allergan in March 2010 in a lawsuit seeking $60 million in
damages for the alleged wrongful death of a 7-year-old, Kristen
In February, another Santa Ana jury hung in a case seeking
$60.5 million for Thomas McGee of Missouri, who sued the company
after taking Botox and developing Guillain-Barre Syndrome. The
case settled earlier this month on confidential terms.
Allergan separately is awaiting an appellate decision in
Oklahoma on a $15 million jury verdict in May 2010 in favor of
Sharla Helton, who claimed to have suffered pain and lost her
job after using Botox.
Chester, who has represented the plaintiffs in all of the
trials, said he has eight Botox cases pending. He said he
expected to go to trial in November in a case pending in
Oklahoma state court.
Allergan shares were down $2.08, or 2.3 percent, at $88.17
in late afternoon trading.