The Court of Appeals for the Eighth Circuit while affirming an award of compensatory damages of $630,000.00 reversed a punitive damage award of $1,115,000.00 on the ground that defendant had not deliberately failed to properly warn consumers of the risks of tendon damage linked to its antibiotic Levaquin.
In John Schedin v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., 700 F.3d 1161 (8th Cir. 2012) the Court of Appeals affirmed the jury’s compensatory verdict on the basis that defendant did not adequately communicate a 2001 warning to the attending physician. The court said that there was enough evidence to support a reasonable jury finding that the defendant did not use sufficient means, under the circumstances of the case, to advise the doctor of the 2001 warning once it learned that its package insert was ineffective.
However, the reviewing court held as a matter of law the defendant did not deliberately disregarded the risk of tendon injuries in elderly patients which would be required for punitive damages under Minnesota law. There was a warning of the risk in the package insert and in the PDR, a reference widely used by physicians. The court concluded that it could not characterize the defendant as hiding information that it openly published and therefore the evidence is neither clear nor convincing as a matter of law, that the defendant deliberately disregarded the safety of the users of Levaquin.
The court also noted that when a prospective juror fails to express herself carefully or consistently, the trial judge is best suited to determine competency to serve impartially.