Only three months after AbbVie obtained a retrial of a case in which a jury had imposed $150 million in punitive damages without awarding any compensatory damages, a new jury awarded the same plaintiff $200,000 in compensatory damages and $3 million in punitive damages.
As Andy Frey and I discussed in our post about the initial verdict, the plaintiff in the case alleges that he suffered a heart attack as a result of using AndroGel, a treatment for low testosterone. The jury found that AbbVie was negligent but found against the plaintiff on his fraudulent misrepresentation claim.
Not counting the original verdict, which was overturned in December, this is the second disproportionate punitive award imposed against AbbVie in litigation supervised by the same district court. The other punitive award is much higher ($140 million) and even more disproportionate (1,000 times the compensatory damages). The district court has still not ruled on the post-trial motions in that case.
What I said in my post about the $140 million award applies equally to the smaller, but still disproportionate exaction in this case. Given that there are roughly 4,000 cases against AbbVie raising similar claims, a punitive award of $3 million—and a ratio of 15:1—can be constitutionally permissible in this case only if the same ratio, and an aggregate punitive exaction of $12 billion, would be appropriate punishment for the effects of AbbVie’s conduct on all AndroGel users.
Even if this jury had found AbbVie liable for fraudulent misrepresentation, the notion that a $12 billion exaction is appropriate for the marketing of a product that has helped many more men than it has allegedly injured would be implausible. But the fact that the jury exonerated AbbVie of fraudulent misrepresentation and found it liable only for negligence should eliminate even the slightest doubt that a $3 million punitive award and a 15:1 ratio are impermissible in the case of this one plaintiff.
This case is a textbook illustration of the need for low ratios (lower than 1:1) when thousands of plaintiffs raise claims arising out of the same product. Let’s hope that the district court gets the point.