In Motrin Case, Court Strips Virginians of Most of Their Rights
A federal appeals court has ruled in a case involving Johnson & Johnson (JNJ) that Virginia is a free-fire zone for drug companies that injure their patients. The ruling will encourage drug companies to attempt to move cases against them to Virginia, where the law is uniquely sympathetic to corporate defendants, and for plaintiffs to bring their cases anywhere but The Old Dominion.
In the case, Karen Robinson took Children's Motrin -- made by McNeil Consumer Healthcare, a unit of J&J -- and had an allergic reaction that caused 60% of her skin to fall off:
... she lost the vision in one eye and has only limited vision in the other, which requires constant medical treatment; she is expected to go blind eventually. She has required multiple operations on her throat and esophagus as a result of the damage to those organs caused by the disease.At trial, a jury found McNeil was liable and awarded her $3.5 million, because a link between the reaction (technically known as toxic epidermal necrolysis) and Motrin was previously known. But the jury also found that because Robinson read the warning label when she bought the drug and continued to take it when her symptoms first appeared, that she had "contributory negligence." The judge wrote:
Virginia as we said makes contributory negligence a complete defense to liability for negligence. Today that is distinctly a minority position, ...In other words, if Robinson bears even the slightest blame for what happened, then McNeil wins the case even if the company is mostly to blame. The trial court heard that Robinson had forgotten the drug's warnings by the time she first took Motrin for a headache. As her condition worsened, she continued to take the drug in the apparent belief that the painkiller/anti-inflamatory would help. It was probably making her condition worse. Motrin's warning says:
Allergy alert: Ibuprofen may cause a severe allergic reaction which may include: hives, facial swelling, asthma (wheezing), shock.Robinson went to her doctor who treated the reaction but did not stop her taking the Motrin. The judge notes that there was a warning directed at physicians, but that Robinson would not have understood it:
... the warning about SJS/TEN, being directed to the physician and thus written in technical language, would mean nothing to her.Even McNeil's lawyers didn't blame Robinson. They said:
We are, of course, not blaming Karen Robinson for her own injuries. We never have. We never will.Yet because Robinson didn't remember the warning she had read in the store, she was partially negligent and thus loses the entire case, the judge ruled. It is hard to imagine a Virginia patient ever again succeeding in an personal injury case against a drug company under the ruling as written. A patient who reads a warning and takes a drug anyway would have the same contributory negligence as Robinson; a patient who didn't bother to read the warning might also be regarded as contributarily negligent.
Side note: the ruling is written by celebrity appeals judge Ricard Posner in his usual jaunty style. Despite the seriousness of the plaintiffs' injuries, Posner can't help himself. Here's his riff on what expert witnesses ought to know:
There is no inconsistency in testifying that a dog cannot walk on its hind legs but that if that's wrong and it can, still it can't (unless perhaps its name is Faith, see "Faith the Dog's Official Website," www.faiththedog.info (visited July 29, 2010)) walk on its hind legs for an hour at a time. A dog can walk on its hind legs, with some training; and a witness who denies this might be thought less credible, in testifying that a dog can't walk on its hind legs for an hour at a time, than if she'd known that a dog can walk on its hind legs. But such a tension is for a jury to weigh.Related: