Ed Silverman
Pharmalot
04/23/2010
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?