NEWS

Allergan appeals $6.75 million Botox case decision

Elizabeth Murray
Free Press Staff Writer

A drug manufacturer has appealed a multimillion verdict against it arising from a lawsuit brought by New York parents who said Botox treatments almost killed their son, who has cerebral palsy.

The appeal by Allergan Inc. to the 2nd U.S. Circuit Court of Appeals comes a few weeks after a lower court judge in Vermont upheld a jury's decision to award the family $6.75 million in damages. The California-based pharmaceutical company manufactures Botox.

Lori and Kevin Drake said Botox injections were recommended by a Burlington-area doctor whom they allege had been incompletely briefed by manufacturers on adverse affects of Botox. The doctor had suggested Botox injections — once in 2010 and again in 2012 — as treatment for the boy's leg spasms.

The U.S. Food and Drug Administration has not approved Botox to treat spasms in children, so the treatment is called "off-label," the Drakes have said.

Their son, Joshua Drake, must be accompanied by an aide at all times in case he has a seizure, his parents said. Before taking Botox, Joshua had no medical history of seizures, and his parents maintain Botox created his seizure disorder.

Allergan had sought a new trial, saying the family failed to prove Botox caused the boy's seizures.

The Drakes' allegations of negligence and breach of the Vermont Consumer Fraud Act were the focus of a 13-day trial in November.

In a 38-page order, Senior U.S. District Judge William K. Sessions III upheld the jury's decision.

"The Court does not conclude that the jury reached a seriously erroneous result or that the verdict was a miscarriage of justice," Sessions wrote. "The evidence presented was sufficient to sustain the jury's verdict and the Court finds no reason to disturb the jury's credibility determinations in this case by ordering a new trial."

EARLIER:

Drake family lawyer Ray Chester said he was pleased with Sessions' decision, and he is unsurprised by Allergan's appeal. Chester, who has represented others in lawsuits against Allergan, said courts have never overturned verdicts in his clients' favor.

"I don't think they have anything to appeal," Chester said of the drug maker. "There was plenty of evidence to support the verdict. ... Allergan appeals every adverse judgment in every court in every case just as a matter of course."

Chester said the Drake family will receive no damages until all proceedings end. The appeal could extend the case by years.

"The Drakes are a little bit frustrated by the length of time everything is going to take," Chester said. "They are nothing if not resolved, and they're determined to see this through. They told me the other day that they started out in this with nothing, and if they end up with nothing, then so be it, but they're not going down without a fight."

The Drakes' lawsuit is one of two in Vermont federal court against Allergan. Chester also is representing the Shelburne family of Melinda Ann "Mandy" Fortuna after relatives said Mandy died from an overdose of Botox treatments over seven years. Trial in the Fortuna case has been scheduled for next April.

Contact Elizabeth Murray at 651-4835 or emurray@freepressmedia.com. Follow her on Twitter at www.twitter.com/LizMurraySMC.