SW Legal Educational Publishing

$20 Million Punitive Damages for Drug Side Effect Not Excessive
Description Appeals court upheld $20 million damages against maker of heart drug that failed to reveal that the drug could cause blindness, which it did. Drug maker's actions were "reprehensible" given its knowledge and duty under FDA regulations, so the damages were not unconstitutionally excessive.
Topic Torts
Key Words Drugs, Failure to Warn, Punitive Damages
C A S E   S U M M A R Y
Facts Axen was given a prescription drug for his heart condition. The drug was known to be linked to vision loss, but the package insert said only that a risk was optic nerve inflammation; vision loss was not listed as a possible risk. Axen became blind as a result of the drug and sued the maker, AHP, for intentional failure to warn and for reckless disregard for his health. The jury awarded Axen and his wife $23 million in damages, including $20 million punitive damages. AHP appealed.
Decision Affirmed. The fact that Axen may have taken the drug even if he had been given a complete warning does not eliminate AHP's liability. One cannot know what decisions would have been made had Axen and his physician had full information. The punitive damages stand because the jury found "(1) that AHP had acted with wanton disregard of the health, safety and welfare of others and (2) that AHP had knowingly withheld from the FDA information that was material and relevant to the injury suffered...." This award is not "grossly excessive" under the Supreme Court's BMW standard.
Citation Axen v. American Home Products Corp., -- P.2d -- (1999 WL 61208, Ct. App., Ore.)
or
974 P.2d 224 (Ct. App., Ore., 1999)

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