Only three months after AbbVie obtained a retrial of a case in which a jury had imposed $150 million in punitive damages without awarding any compensatory damages, a new jury awarded the same plaintiff $200,000 in compensatory damages and $3 million in punitive damages.
As Andy Frey and I discussed in our post about the initial verdict, the plaintiff in the case alleges that he suffered a heart attack as a result of using AndroGel, a treatment for low testosterone. The jury found that AbbVie was negligent but found against the plaintiff on his fraudulent misrepresentation claim.
Not counting the original verdict, which was overturned in December, this is the second disproportionate punitive award imposed against AbbVie in litigation supervised by the same district court. The other punitive award is much higher ($140 million) and even more disproportionate (1,000 times the compensatory damages). The district court has still not ruled on the post-trial motions in that case.
What I said in my post about the $140 million award applies equally to the smaller, but still disproportionate exaction in this case. Given that there are roughly 4,000 cases against AbbVie raising similar claims, a punitive award of $3 million—and a ratio of 15:1—can be constitutionally permissible in this case only if the same ratio, and an aggregate punitive exaction of $12 billion, would be appropriate punishment for the effects of AbbVie's conduct on all AndroGel users.
Even if this jury had found AbbVie liable for fraudulent misrepresentation, the notion that a $12 billion exaction is appropriate for the marketing of a product that has helped many more men than it has allegedly injured would be implausible. But the fact that the jury exonerated AbbVie of fraudulent misrepresentation and found it liable only for negligence should eliminate even the slightest doubt that a $3 million punitive award and a 15:1 ratio are impermissible in the case of this one plaintiff.
This case is a textbook illustration of the need for low ratios (lower than 1:1) when thousands of plaintiffs raise claims arising out of the same product. Let's hope that the district court gets the point.
Originally published April 19, 2018
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2018. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
