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The Oregon Supreme Court has refused to review a $22.5 million punitive judgment awarded to a doctor who contended he had been harmed by a drug company’s failure to warn about possible toxic antibiotic interactions with an asthma medication. The doctor contended that the drug company’s fraud had kept him from diagnosing a toxic drug interaction in a patient who subsequently sustained permanent brain damage. The Supreme Court ruling leaves standing an Oregon Court of Appeals decision that the punitive verdict against defendant Key Pharmaceuticals Inc. was not excessive, despite its ratio of punitives to compensatories of 45 to 1. The judgment — now at $38.5 million with interest — may be the largest-ever recovery for a third party in a personal injury action. The Oregon verdict was in favor of Dr. Frederick D. Edwards in 1994 as part of a products liability suit against Key, a division of Schering-Plough Corp. The primary plaintiff was Paul Bocci, who used Key’s theophylline product Theo-Dur. In October 1991, Bocci, then 20, was prescribed the antibiotic ciproflaxin during a visit to a walk-in clinic in Eugene, Ore. A week later, Bocci came to a second clinic complaining of nausea, vomiting and diarrhea. He was treated and released by Edwards. Five hours later, Bocci began having seizures, which caused brain damage, said plaintiffs’ attorney Joel D. Cunningham of Seattle’s Luvera, Barnett, Brindley, Beninger & Cunningham, who represented Edwards at trial. Bocci sued Edwards and Key, but Edwards sued Key as well, charging negligent failure to warn about possible drug interactions and fraudulent misrepresentation in Key’s advertising and promotion of Theo-Dur. “Key had promoted its drug as safer than other theophylline products and Edwards had relied on these representations,” Cunningham said. This reliance caused Edwards to discount the possibility that Bocci was showing symptoms of theophylline toxicity during the examination at the clinic. The essence of the Edwards claim was that Key had committed fraud, which harmed the doctor as well as the patient. In September 1994, an Oregon jury awarded $44 million to Bocci and $23 million to Edwards; the award included $35 million in punitives for Bocci and $22.5 million in punitives for Edwards. The defense appealed. In 1997, Key agreed to pay $29 million to settle the Bocci part of the lawsuit, but continued to pursue the Edwards appeal. Key raised multiple issues on appeal, including a contention that Edwards failed to prove that Key had withheld or misrepresented to the FDA information about the problems with Theo-Dur. In February 1999, the Oregon Court of Appeals dismissed all of Key’s arguments and upheld the jury’s decision. The vote was 4-4, Cunningham noted, but “the tie went to the winner” in the trial court. Key appealed again. In April 2001, the Oregon Supreme Court vacated the appellate decision and sent it back on the single issue of the amount of punitives. Last November, the appellate court refused to alter the punitives, finding the award was not excessive. Key argued that the large amount awarded by the jury was caused by an overemphasis in the trial on Key’s financial condition. The court said, “We disagree. The jury specifically found by clear and convincing evidence that Key knowingly withheld information or misrepresented information concerning toxicity problems associated with Theo-Dur.” Under Oregon law, the state will take half of the punitive award. Attorneys for Key did not return calls. Mary H. Spillane of Seattle’s Williams, Kastner & Gibbs, a plaintiff’s appellate counsel, said the defense has indicated they will appeal. Bocci v. Key Pharmaceuticals Inc., 332 Or. 39, 22 P.3d 758 (2001).

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