W. Fred Orr II couldn't stop smiling last weekend after he obtained a $9.25 million jury verdict on Friday in favor of a man he called "the most courageous client" he's ever had.
It's easy to understand why Orr's client, John Henry Howard, is brave -- Howard sued an Atlanta men's clinic after its erectile dysfunction therapy caused permanent damage to Howard's penis.
"He was willing to take the stand and testify in an open courtroom about his private life," Orr said. "God knows how many other John Henrys are out there."
Before and during trial, Orr settled with two of the three named defendants. Boston Men's Health Center Inc. was the defendant hit with the verdict. The company's counsel, Hawkins & Parnell partner Alan F. Herman, said a decision has not been made whether to appeal or to file a motion for a new trial.
The jury of six men and six women found in favor of Howard following a six-day trial before DeKalb State Court Judge Wayne M. Purdom, awarding $750,000 in compensatory damages. After further deliberations, the jury levied $8.5 million in punitive damages against the company and found that the defendant acted with an intent to cause harm. Orr said he had asked for $6.75 million in punitive damages.
Howard's saga began in September 2006, when the 53-year-old Ellenwood, Ga., truck driver responded to a radio advertisement by Boston Medical Group, which promised "sex for life," Orr said.
Boston Men's Health Center Inc. is an Altamonte Springs, Fla.-based company that owns 22 clinics in 12 states and the District of Columbia, Orr said. Its clinics are operated under the name Boston Medical Group. The company was founded in 1999 by Quoc Ha, who serves as the company's chief executive and continues to control Boston Men's Health Center through offshore companies, Orr said.
Orr said that while there have been some malpractice claims filed against the company in other states, he was not aware of a case against Boston Men's Health Center that went to a jury trial.
At the clinic's Buford Highway location, Howard was placed in a waiting room filled with brochures warning about the dangers of erectile-dysfunction medications that are taken orally, such as Viagra or Cialis. The clinic's staff told Howard that their therapy was "painless" and based on a proprietary formula, Orr said.
After the initial examination, the clinic's staff diagnosed Howard with erectile dysfunction and premature ejaculation and said they would inject their medication into his penis, a process that would be "painless." Although described by the company as a "secret formula," Orr said that the primary ingredient injected into Howard was a drug called papaverine. While papaverine had once been the primary means of treating erectile dysfunction, it was discarded as a treatment after Viagra was introduced in 1998, Orr said. The Food and Drug Administration has since warned that papaverine should not be used to treat erectile dysfunction, he said.
During his questioning of Howard on the witness stand, Orr said that he asked why Howard did not then get up and leave the clinic. Howard responded, according to Orr, that he had always considered himself to be "macho," that he worked out at a gym five days a week, where he was also an instructor in weightlifting, and that he was not a "coward."
"He said that he wasn't scared of a needle," Orr said.
But Howard also said, under questioning, that if he had known he would have received an injection in his penis, he would not have visited Boston Medical Group.
"Not a man on the face of the earth would go into one of these places if they knew what they were going to do to them," Orr said.
The injection produced immediate results, Orr said.
Howard paid about $1,200 for a six-month supply of the clinic's medication, which he was instructed to inject into himself in the same location three times per week over the next six months.
Two weeks later, on a Saturday, after receiving the shipment of the medications, Howard administered his first and only injection of the clinic's product and had "the best erection he's ever had in his life," Orr said.
"He thinks that this stuff is really incredible." Orr said.
But the erection didn't dissipate and soon became painful. By Monday morning, Howard still had the erection and it had become more painful, so he visited the clinic. The clinic's staff removed blood from his penis in attempt to provide relief, but that procedure did not work. Howard was sent to Piedmont Hospital's emergency room. Howard eventually learned that the clinic's medicine had caused fibrosis and scar tissue to form.
As a result of the fibrosis, Howard is now unable to have a normal erection. He can have an erection after using Viagra, although it is not a "complete" erection, Orr said.
Each side relied on one key expert witness during trial, Orr said. Orr's witness was J. Francois Eid, a New York-based urologist who specializes in prosthetic reconstruction. The defense called Neal Shore, a Myrtle Beach, S.C.-based urologist.
Orr said that, during his cross-examination of Shore, he asked the urologist to identify the first line of treatment for erectile dysfunction. After Shore responded that injections were the first line of treatment, Orr presented Shore with a copy of a page from the Web site of Shore's clinic that said oral medications like Viagra are the first line of treatment. Orr also said he had printed the page the previous night from the Web site of Shore's clinic.
The clinic's attorneys said that Howard waited too long -- more than 36 hours -- after he self-administered the first injection and first experienced pain before he sought help from the clinic's staff. "The main argument I tried to make during closings is that there was a substantial delay in seeking assistance," said Herman, counsel to Boston Men's Health Center. "Had medical assistance been sought sooner, it was more likely than not that the damage would have been avoided."
Herman also said that while he respected the jury's decision, he was "very disappointed" that the jury found that fraud was committed, and "particularly with respect to the amount of punitive damages they assessed." Hawkins & Parnell partner Assunta S. Fiorini was co-counsel with Herman on the case.
The other named defendants, Boston Medical Group-Georgia Inc. and physician William Powell, settled before and during the trial. Terms of the settlements were not disclosed. Boston Medical Group-Georgia is the Georgia-based subsidiary of Boston Men's Health Center.
Hall Booth Smith & Slover partner Jack G. Slover Jr., co-counsel to Boston Medical Group-Georgia, declined comment on the settlement.
"Fred [Orr] did an outstanding job, as you would expect," Slover said. Hall Booth partner Shaun M. Daugherty was co-counsel with Slover.
Owen, Gleaton, Egan, Jones & Sweeney partner Roger E. Harris, counsel to physician William Powell, said that his client denies liability for Howard's injuries, and denied being complicit in "any fraud" in the case.
Working with Orr on the case was his law partner, James G. "Smokey" Edwards II, and Cash, Krugler & Fredericks partner Alwyn R. Fredericks.
Orr said that, as the jury foreman was delivering the verdict, "Everyone in the jury was staring at me, smiling at me." As the jury was leaving the courtroom, 10 of the 12 jury members gave Orr a bear hug, he said.
"This was one of the greatest moments in my whole career," Orr said.
The case is Howard v. Boston Men's Health Center, No. 07A75518 (filed Oct. 4, 2007).