In an apparent case of first impression, a Philadelphia judge said there were no errors of law that should lead to the overturning of a $10 million verdict awarded in a case in which the plaintiffs argued that a young girl’s use of over-the-counter Children’s Motrin left her blind in one eye, with damage to her reproductive system and permanent disfigurement of much of her skin.
The $10 million in compensatory damages was awarded against Johnson & Johnson’s McNeil-PPC on the claim that the drugmaker failed to adequately warn of the risks of taking over-the-counter Children’s Motrin.
The jury did not award punitive damages nor did it find that Children’s Motrin was negligently designed.
The case is now on appeal to the Superior Court.
Philadelphia Court of Common Pleas Judge Nitza I. Quiñones Alejandro also recommended that McNeil’s appeals be quashed for failure to conform to the Pennsylvania Rules of Appellate Procedure.
Alejandro said that McNeil did not file a concise statement of errors it is complaining of on appeal when its statement "consists of 11 pages outlining 23 numbered paragraphs/issues. Several of these paragraphs contain numerous sub-issues while others make specific references to its 50-page post-trial motion … and/or to the motions in limine, and/or the oral motion for mistrial, and/or the supplemental motions for mistrial."
The judge also rejected McNeil’s argument that Tennessee law, not Pennsylvania law, should have governed the claims of Brianna Maya, who was 13 at the time of the verdict in the spring of 2011, as well as the claim of her mother, Alicia E. Maya.
First, the judge reasoned that Pennsylvania’s and Tennessee’s products liability and punitive damages law is "substantially similar," except that punitive damages must be proven by clear and convincing evidence, not just preponderance of the evidence, in Tennessee.
Second, the judge reasoned that, while Tennessee is where Brianna Maya resided and first received treatment, Maya received specialized treatment in other states. But, "in contrast, Pennsylvania is where Children’s Motrin was manufactured, where the decisions surrounding the language of warnings on the label were made, where the research on the product was conducted, and where the principal personnel involved either resided or worked," the judge said.
"Clearly, Pennsylvania has the most significant relationship between the occurrence and the parties," the judge reasoned. "It has an undisputed responsibility to ensure that manufacturers provide safe products for the consumer and comply with state laws. Equally relevant is the citizenship’s expectations that products will be safe for consumption. Defendant McNeil chose Pennsylvania as a major hub in its operations."
Maya, when she was 3 years old, was given doses of Children’s Motrin in alternation with over-the-counter Children’s Tylenol because she had a fever over the course of two-and-a-half days, according to the opinion.
On the morning of the third day, Maya was taken to a local hospital in Martin, Tenn., because of a rapidly spreading rash over her entire body, including blisters on her mouth, chest and vaginal area, according to the opinion. She underwent several forceful debridements of her skin, followed by skin grafts of pig skin or skin from cadavers, because of the risk of infection from so many open wounds and blisters.
Two days after being taken to the hospital, Maya was transferred to Shriners Burn Hospital in Texas, according to the opinion. At that point, 84.5 percent of Maya’s body was estimated to be covered with open wounds.
Maya’s injuries were not from burns, however, but from Stevens-Johnson syndrome/toxic epidermal necrolysis, which is part of the same disease process in which the human body attacks its own skin and mucous membranes, according to the opinion.
The medical staff at Shriners determined that Maya’s use of pediatric ibuprofen, or Children’s Motrin, was the cause of her disease, according to the opinion.
Maya has undergone 16 eye surgeries, and she required surgery to stop her menses backing up in her abdomen, according to the opinion.
The judge rejected McNeil’s argument that the verdict was the result of partiality by the jury.
"The verdict was not the result of partiality or prejudice but, rather, the result of an engaged panel who considered the horrific consequences of Brianna’s injuries," the opinion said.
Those injuries also included the possibility that Maya will lose vision in her other eye, that she will not be able to bear children or have a normal sexual relationship, and that she needs to avoid exposure to the sun, the judge said.
The judge said it appears the jury believed that McNeil should have provided more adequate warnings, including that the label of over-the-counter Children’s Motrin should have warned of SJS/TEN.
It also appeared that the jury believed the testimony of Alicia Maya that if such warnings had been given that she would not have administered Children’s Motrin to her daughter, the judge said.
The judge also rejected McNeil’s argument that federal law pre-empts the state-law claims.
The judge also rejected McNeil’s arguments that the plaintiffs’ counsel committed prejudicial misconduct.
"While the trial judge admits that an exorbitant amount of patience was required to control all counsel throughout the entire trial, this trial judge cannot find that the implied misconduct affected the jury’s ability to sieve through the evidence objectively and return a verdict that is supported by and comports with the evidence presented," the opinion said.
The Mayas’ lead counsel, Keith Jensen, a Fort Worth, Texas, lawyer, and McNeil-PPC’s lead counsel, David F. Abernethy of Drinker Biddle & Reath, did not respond to requests for comment Wednesday afternoon.
The judge issued her opinion January 7.
(Copies of the 113-page opinion in Maya v. Benefit Risk Management, PICS No. 13-0142, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •