Allergan Seeks $460K From A Defeated Plaintiff
39 CommentsBy Ed Silverman // April 23rd, 2010 // 6:45 am
And what a plaintiff. The drugmaker wants to recover $460,000 in legal costs from Dee Spears, who unsuccessfully sued Allergan over the death of her 7-year-old daughter, Kristen, after she was administered a series of therapeutic Botox shots. She sued the drugmaker for $60 million, accusing it of concealing info about the dangers of the drug, which was used to relax the girl’s clenched limbs; she suffered from cerebral palsy (see background).
But a jury in Santa Ana, California, decided last month Allergan wasn’t responsible for the girl’s death in 2007. And now Allergan wants its money back. “I’ve been a lawyer for 25 years, and I’ve never seen anything more outrageous than a corporation pursuing this lady for $460,000,” Spears’ attorney, Ray Chester, tells The Orange County Register. “It’s the worst case of corporate bullying I’ve ever seen.” The Spears case was the first to come to trial of 15 plaintiff lawsuits accusing Allergan of hiding the dangers of Botox.
Allergan isn’t shy about pushing legal limits. Last October, the drugmaker filed an unprecedent lawsuit, alleging the FDA ban on off-label marketing violates its First Amendment rights to free speech (see background). The suit was filed a month after the FDA told Allergan to include a Risk Evaluation & Mitigation Strategies program to discuss some off-label prescribing guidelines with doctors. But to comply, Allergan argues it must tells docs about the latest Botox data, even if some info involves off-label use - and that could prompt the government to file a lawsuit for off-label marketing.
In chasing Spears for the money, Allergan walks a fine line. One on hand, the drugmaker is within its rights and may deter others from filing suits. But the publicity isn’t likely to be favorable. Just listen to Spears: “I lost my daughter. I lost the case. I lost my job. I never thought this would happen. I thought we would win the suit. I didn’t press this case for the money. I did it to tell people that Botox is poisoning people. I still believe that their product was the cause of my daughter’s death. I don’t know how I would pay the money. Unemployment pays one-fifth of what I was making. All my furniture is old. I bought it at a yard sale. I don’t have anything except four cats and a dog.”
For its part, Allergan tells the Register the jury found Botox played no role in the girl’s death, which was, instead, caused by her condition, but doesn’t come off very sympathetic. “The trial relates to a very sad and unfortunate situation, and our hearts go out to Dee Spears for the loss of her daughter, Kristen,” a spokeswoman tells the paper. Nonetheless, you can bet the pharmaceutical industry and its attorneys are watching this closely. Imagine if Allergan wins - perhaps that would change the calculation used to bring all those product liability lawsuits. What do you think?
Should Allergan Go After This Woman?
- No (70%, 198 Votes)
- Yes (31%, 87 Votes)
Total Voters: 283
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Lisa Van Syckel
Well Pharma never ceases to amaze me, attacking a Dead Child’s Estate is no way of demonstrating that you care about the patient.
You would think they would make an effort to stay away from negative publicity. What Morons!!….
BeenThere
Allergan is one of the scuzziest companies of them all, bar none. If this helps bring that more out into the open, they’ll need more than Botox to mask what they actually look like.
Reality is that no suit goes forward if a judge doesn’t agree it has the merit to do so. So this is likely to blow up in their face. Frankly, I am looking forward to that.
in-house
If the woman had no cuase of action and it was determined by a court as such, what reason is there that the company should not be able to recoup their fees in defending themselves from this lawsuit?
Do we expect all companies to absorb all costs associated with these types of lawsuits?
keiner
Everyone sues everybody, that’s the American way of life, I thought.
Why should anybody pay the lawyers bill, if he get’s sued unsuccessfully? Maybe we should ask the mothers lawyer to pay, he would have earned some money, if the case was successful for him. Why shouldn’t he take the risk, if he has the advantage?
Paul
Ed, your question is misleading, perhaps it should read “Should Allergan go after this lawyer”.
Don’t know for sure but often these cases are dogged by unscrupulous lawyers chasing settlements where they get millions for themselves, just watch any night TV channel or the ads in other pharma blogs.
Again, not saying this was a frivolous one, but maybe it was and the frivolity has to stop.
Jim
Cerebral palsy is not an approved use of the drug, nor is any other use of Botox in children under the age of 12. So the original suit asking for $60M seems a little over the top. I suspect that if the original plantiff had asked for a less lottery-like award, Allergan would not have counter-sued.
patrons99
Help me understand. Has it been suggested that there was any illegal off-label marketing of Botox for use in cerebral palsy or for use in kids under 12 years of age? Did the physician who prescribed this off-label use of Botox give the family a full disclosure of potential risks, i.e. an informed consent?
Dianne
The pigs are at the trough…
I’ve heard that pigs that eat too much explode.
patrons99
Do kids ever die from complications of cerebral palsy? Yes. So, is Botox necessarily implicated in this particular death? Not necessarily. Were any other drugs involved? What was the temporal relationship to Botox dosing and the death? Was a blood toxicology screen performed? Were there any recent blood chemistries? Was an autopsy performed, and if so, what did it show?
“The Spears case was the first to come to trial of 15 plaintiff lawsuits accusing Allergan of hiding the dangers of Botox.”
There is certainly no guarantee that Allergan will prevail in the next 14 plaintiff lawsuits.
Don
It’s funny that she says it wasn’t about the money, but she sued for a whopping $60 million. Where was the outrage then, when she was trying to gouge for $$$? Admittedly this is a case that has enormous sympathy for this woman’s loss; it’s horrible. But lawyers who take on companies asking for that kind of moolah knowing they get 30-40% of it need to come in with eyes wide open. These companies must, and have a obligation to shareholders, to defend themselves.
Lisa Van Syckel
It was still a bad PR move on Allergan’s part, should stick to, stickin it with adults, not children.
interested observer
Incredible sleaze in Orange County…..they have cometitors in botox arena…..I see patient push to boycott botox…..it just takes a few hollywood celebs and few PR guys……
patrons99
Was Spears’ attorney named in the lawsuit by Allergan? Shouldn’t Spears’ attorney now have to defend her pro bono? Wouldn’t that be the fair thing to do? Should he not bear at least some part of the risk of bringing the lawsuit in the first place? And if Spears losses, shouldn’t former Spears’ attorney be forced to pay some part of the judgment?
Our current legal system has very little to do with either fairness or justice. Litigation is certainly not for the faint of heart.
Lisa Van Syckel
“Litigation is certainly not for the faint of heat”.. Oh Patrons99, youv’e got that right!
Tort Reform Anyone???
“The trial relates to a very sad and unfortunate situation, and our hearts go out to Dee Spears for the loss of her daughter, Kristen,” a spokeswoman tells the paper.
If this were not such a sad case, that statement would be funny. Allergan will doggedly pursue collection against this woman to send a message to anyone else who would dare think about bringing a lawsuit against them.
Every time I hear some minimum wage earning sap say we need tort reform, I laugh. Tort reform is already built into the system. Had this poor woman won her lawsuit hands-down and a jury awarded the $60 million, Allergan would have cried excessive award, appealed and a judge would have either reduced it by 95% or vacated the award altogether.
Marilyn Mann
This lawsuit is odd. In the U.S., the general rule is that each side pays its own lawyer.
harpy
it’s a tacky move and they’ll be crucified in the court of public opinion.
staytuned
Lots of people inside Allergan “know too much,” and this may just be enough to open up the floodgates. I know them.
This is a company that does not inspire loyalty. Rather, fearful obedience.
JaT
This is interesting. When I approached a few law firms over the Dilantin reformulation that damaged several dozen people that made statements about their injuries (only those that I am aware of), I was told that the lawyers ‘take’ had to do with their investment and risk in bringing it. Made perfect sense to me, as expert witnesses and discovery is costly and there are no guarentees.
It seems that bringing the suit against Allergan should fall under that risk- based on everything I was told.
Also, Don, my desire to sue really had nothing to do with money. What happened to us was dangerous and it was being swept under the rug. To what extent- would require a lot more than I care to get into here. People were being harmed and there was no reporting on the situation until Ed took the story. It is a story that seemed important for anyone that might be taking pharmaceuticals as CDER was involved. It could happen to anyone (and has and will) just that the drug I was taking made it more obvious than with other drugs.
That doesn’t mean that our losses should not have been recovered, but some of the major losses came later, as a result of trying to continue to live productive lives- and as recovery proved to be very difficult for some.
I doubt this mom set the amount. If the loss of this suit was the result of her lawyer setting too high an amount then she was seriously damaged by whoever was representing her.
How the decision in this case came to the end that it did, I don’t know. What I do know is that it very difficult to prove that a drug caused damages to people who have reason to take one. If it comes down to Reasonable Doubt then drug makers have a huge advantage- and anyone willing to use their products should know it. There should be a black box warning on all drugs that reads:
Use this product at your own risk.
patrons99
@ Marilyn -
The general rule that “that each side pays its own lawyer” is not always followed by courts. The judge in this case must have exercised his or her “discretion” in holding the plaintiff responsible for the defendants’ legal fees (billable hours, court costs, etc). This practice leaves considerable room for judicial bias.
There is often a vast economic disparity between parties to lawsuits. Allergan’s legal fees probably reached that amount, because of the number of attorneys, all churning billable hours in parallel. Thus, only wealthy litigants can sustain legal proceedings, especially if they become lengthy. Even with the most righteous of causes of action, only wealthy litigants dare file lawsuits seeking affirmative relief.
Sadly, the lawyers on both sides of a lawsuit, never get stuck for legal fees (attorney’s fees and costs). Such a system does not exactly instill faith in clients that their retained counsel will fight hard on their behalf. Tort reform is desperately needed in this country.
Pharma Conduct Guy
JaT said “…my desire to sue really had nothing to do with money. What happened to us was dangerous and it was being swept under the rug…”
On the subject of lawsuits, I’ve seen a number of studies indicating that financial gain is usually not the primary motivation of a plaintiff. Rather, their decision to pursue a lawsuit is based on a strong sense of indignation due to an injustice where the defendant acted wrongly and then refused to acknowledge the plaintiff’s injury. The goal in filing the lawsuit is to compel the defendant to acknowledge that what they did was wrong.
Pharma Conduct Guy
Patrons99 said “There is often a vast economic disparity between parties to lawsuits. Allergan’s legal fees probably reached that amount, because of the number of attorneys, all churning billable hours in parallel.
Thus, only wealthy litigants can sustain legal proceedings, especially if they become lengthy. Even with the most righteous of causes of action, only wealthy litigants dare file lawsuits seeking affirmative relief…Tort reform is desperately needed in this country.”
Well stated. As this story shows, because of the high risk involved with bringing a lawsuit, most attorneys will not even consider taking a case on contingency no matter how strong the merits of the case unless the payout is in millions of dollars.
Although we occasionally hear about the rare case where an individual recovers damages against a corporation, because of the way the justice system is stacked against individuals, you never hear about the other tens of thousands of valid cases that either never get filed, or get filed and are thrown out on summary judgment, where a judge decides the case has no merit before it even gets to trial.
As Patrons99 said, an individual is at a disadvantage from the beginning. How many individuals could afford to run up a $460,000 legal bill in the first place. This judge’s decision will embolden corporations to fight lawsuits harder.
Fewer cases will ever be brought in the first place for either because no attorney will take it on contingency or because a plaintiff will fear losing and owing half a million dollars in reasonable legal fees (laughing maniacally, reasonable). On the other hand, should the plaintiff win, the most the company will owe in legal fees is probably upwards of $50,000.
And then, even when a plaintiff wins a large judgment, a defendant need only assert that the award is excessive and judges frequently agree, as recent decisions in the case of Wyeth’s hormone replacement show (e.g. Do a Google search for “Pfizer Achieves Tort Reform With 93% Reduction of Jury Award”). So called frivolous lawsuits are far less common than big companies want you to believe.
It’s good to be the king!
JaT
Pharma Conduct Guy,
Yes, what you said, but more to inform doctors and other consumers of the situation- either to allow them to know what happened or to hopefully prevent similar damages to them.
Correction to my line above:
What I do know is that it is very difficult to prove that a drug has caused damages to people who have reason to take one. If it comes down to Reasonable Doubt then drug makers have a huge advantage- and anyone willing to use their products should know it.
BeenThere
Heard from folks. The major S is about to hit the fan for Allergan. Their aggresiveness in these cases is a smokescreen, because they know how extraodinarily vulnerable they are. Bank on it.
Pharma Conduct Guy
Personally, Ralph Nader seems kind of “out there” to me. However, his following statement, which was taken from http://www.votenader.org/issues/tort-system/, seems fitting for this thread.
“The civil justice system is one of the last places in this country where individuals can successfully challenge insurance companies, the corporations that make dangerous consumer products, and those who injure and kill through environmental and occupational dangers.
But for the past twenty years, corporations have been in the forefront of an all out attack – they call it tort reform, we call it tort deform— on the American right to trial by jury in civil cases…
…The ultimate goal of the tort deform movement is to immunize corporations from lawsuits brought by injured citizens seeking justice against the perpetrators of harm…“
patrons99
Yes, Pharma Conduct Guy. Nader is right on target. As a victim of pharma, seriously injured in business and property, I would add that tort deform was particularly virulent during the 8 dreary years of the Bush administration, at least from my perspective.
After a decade of fighting the good fight, “seeking justice against the perpetrators of harm”, in over half a dozen judicial hellholds, I’d have to say that an individual seeking legal redress for injuries to business and property has slim-to-no chance of ever prevailing. The economic disparity is too great and corporate legal counsel leverage that disparity to their advantage. Corporations and their officers act in concert with other corporations, as well as with individuals, whenever it suits their needs.
Chapter 11 bankruptcy proceedings are a great example of the system catering to the corporation seeking bankruptcy relief over the individual claimant, allegations of fraud notwithstanding. Fraud claims against corporations are trumped by the need for efficient corporate reorganization in bankruptcy courts.
Nowadays, defense counsel are even “allowed” by the federal trial courts to perjure themselves, knowing full well that they will get away with it. Today, it’s a rigged contest in which individual seeking legal redress for injury quite often ends up “road-kill” by the corporation and “their” courts of law.
patrons99
Civil RICO actions may have once been an effective means of seeking legal redress for serious injuries to business and property, particularly for victims of conspiracy. Today, however, federal courts look upon such actions with disdain. Individual plaintiffs in such actions against one or more corporations, are made to feel like rogues or pariahs, even when the cause of action is righteous. Procedure often trumps substance. Procedural traps are often set and used to obtain dismissals.
Civil RICO actions will probably succumb to “tort deform” in the very near future. Even the Supreme Court seems uncomfortable with the federal RICO act, and seems unwilling to clarify ambiguities in the act, even when the opportunity presents itself.
http://www.scribd.com/doc/17301455/Supplemental-Brief-and-Appendix-in-Support-of-Petition-for-Writ-of-Certiorari-071525
Former Pharma Marketing Director
Patrons99 - I am trying to understand the same questions myself.
There are studies out there showing Botox high and low dose being used on children and for some children aged 7 years and younger.
In my mind the issue rests on the informed consent. What, if anything, did Allergan have by way of information from any of the clinical trials done on children, that may have helped the parents decide whether or not to go forward with this treatment.
I certainly hope that the raw data from any of the clinical trials for Botox done in this area are fully released during the other trials.
Furthermore, I would say that Allergan is showing very poor form in pursuing the patients parents before all the other trials have been resolved. This is excessive aggressiveness.
Show us the raw data!!!
Allergone
There is a reason for the aggressiveness. Distraction.
Justice in MI
Allergan’s off-label promo suit is a joint venture with the Washington Legal Foundation, the folks who brought us the most vicious (and mendacious) deregulatory attacks on FDA of the mid-90s, many of the Dan Troy/FDA preemption initiatives, and the continuing push to open off-label promo.
For starters….
Marilyn Mann
“The judge in this case must have exercised his or her “discretion” in holding the plaintiff responsible for the defendants’ legal fees (billable hours, court costs, etc).”
This is incorrect. Allergan has not been awarded anything yet. The post is unclear, but probably Allergan filed a post-trial motion requesting an award of legal fees and costs. It seems unlikely that they will prevail on this.
Marilyn Mann
OK, I did a little research and found out the following:
“Now, Allergan has filed a costs memorandum with the court requesting around $460,000 in costs because mother rejected a Code of Civil Procedure section 998 offer, a costs-shifting mechanism that is triggered when a settlement offer is rejected. (For more on the operation of this mechanism, see our category “Section 998” on the left hand side of our web home page.) We would surmise that the costs are as high as they are because Allergan is attempting to recover for expert witness costs and deposition expenses—costs categories that can be very high in cases such as the Spears case.”
http://www.calattorneysfees.com/2010/04/in-the-news-allergan-maker-of-botox-seeks-to-recover-costs-of-460000-against-mother-of-deceased-girl-who-lost-an.html
Apparently, Section 998 is a California fee-shifting statute that applies where the defense offers a settlement and the plaintiff refuses it and then fails to obtain a more favorable judgment or award. That’s all I know about it.
Justice in MI
Thanks for the valuable clarification, Marilyn!
patrons99
Ditto! Thanks, Marilyn.
Pharma Conduct Guy
Nice work Marilyn!
Former Pharma Marketing Director
So the mother was offered a settlement and refused. I wonder how much the settlement was.
Besides that, I wonder why her legal counsel didn’t make her aware of the cost shifting mechanism and the danger.
Maybe she should sue her lawyer….
But I still say where is the raw data on using Botox on children.
what was the informed consent? We do not know these things, I haven’t found it anywhere.
JaT
Assume for a minute that Ms. Spears was being honest when she made this comment:
“I didn’t press this case for the money. I did it to tell people that Botox is poisoning people.”
I interjected my situation for perspective. What were the conditions of the settlement offer? My objective was to inform. If she felt as I did, then not taking a settlement becomes more understandable. If I had been told that I would be given X amount of dollars but could not expose others to the dangers, there is no chance I would have taken it.
And too, if she was thinking the offer was not equal to the value of her daughter’s life (how could any dollar amount ever be) then to refuse one seems a little more reasonable.
Simply by being a grieving parent against a defendant with no emotional attachment had her at a disadvantage. Who even knows the quality of the law firm. They are not all created equal.
It occurred to me that this is like whistleblowing without the protections. I guess I was lucky that no one would bring my suit- though I might have had better information.
I feel so sorry for Ms. Spears. She’s poor (doesn’t make her an opportunist)- strike one. Would her daughter have died an early death anyway (doesn’t matter if botox hastened it)- strike two. The case was heard in Botoxville- strike three.
She should know that she accomplished what she set out to do. Good for her. Feelings of injustice are nearly impossible to get over, but this kind of education does allow you to know- that you know- and they hate that you know it. Allergan should be ashamed to further damage this woman and I don’t think it would be wise for other drug makers to follow suit. When you become untouchable and unfeeling you also become untrustworthy. The end of prosperity.
patrons99
JaT -
“When you become untouchable and unfeeling you also become untrustworthy.”
Well said. It seems that whatever is good for pharma is now universally “good” for the country. Why else would our government and mainstream media continue to endorse “everything-pharma” ? There are now beyond reproach. They have become untouchables.
The “tort deform” movement is gaining ground in both state and federal courts, nationwide. Fee-shifting statutes (e.g., California) and judicial discretion in awarding legal fees in other jurisdictions (e.g., the 5th circuit) are just a few examples…there are many.
In another recent pharmalot thread, JimK said it best:
“As the evidence on the newer drugs continue to demonstrate that the risks far outweigh the benefits it seems that the 21st century pharmaceutical companies are merely government endorsed “patent medicine” salesmen and women.”
http://www.pharmalot.com/2010/04/the-fda-may-halt-the-avandia-safety-study/#comment-490961
Yes, pharma has become “government-endorsed” and is considered to be “too big to fail”. White collar corporate crime by pharma is so common these days, that it’s become fashionable. Fines and CIAs are just readily-affordable, budgeted, costs of doing business. They do it because they can! They have become arrogant and brazen.
As typified by this post, pharma’s conduct is now “in your face, America”, you can’t touch us. We’re untouchable.
Former Pharma Marketing Director
I have a few horror stories myself to tell - one say.
I agree, JaT said it well “When you become untouchable and unfeeling you also become untrustworthy”
The best way to show our displeasure is by consciously not purchasing any of the products.
When they have no money, they have no power.
Anyone who buys and product is also making a political decision. Choose wisely….
I do every day..