PHILADELPHIA — (Mealey’s) A Pennsylvania appeals court panel on July 22 affirmed a $10 million Children’s Motrin verdict for a girl who suffered toxic epidermal necrolysis (TEN) after being given the over-the-counter pain/fever reducer at age 3 (Alicia E. Maya, et al. v. Johnson and Johnson, et al., No. 3259 EDA 2011, Pa. Super. [enhanced opinion available to lexis.com subscribers]).
In November 2000, Alicia E. Maya gave her daughter, Brianna Maya, Children’s Motrin, whose active ingredient is ibuprofen. Brianna developed a chest rash the next day, and her doctor told Alicia to alternate Children’s Motrin with Children’s Tylenol, which contains acetaminophen.
Brianna’s symptoms continued to worsen, and she was hospitalized with severe blisters over her body. She was airlifted to a burn hospital with about 84.5 percent of her body covered in open, burnlike wounds.
The girl was eventually diagnosed with TEN, which is a severe form of Stevens Johnson syndrome (SJS). Brianna was hospitalized until December 2000. She is now blind, suffers from scarred lungs and will be unable to have intercourse or deliver a child.
Alicia Maya sued Children’s Motrin manufacturer McNeil-PPC Inc. After a nine-week trial in 2011, a jury in the Philadelphia County Common Pleas Court found that McNeil negligently failed to warn Alicia of the risk of TEN.
The jury found for McNeil on the claims of negligent design defect and punitive damages. The trial court denied McNeil’s post-trial motion for a new trial, and McNeil appealed to the Pennsylvania Superior Court.
The three-judge panel rejected McNeil’s argument that a different warning would not have made a difference. The panel said testimony showed that an adequate warning would have prevented Brianna from receiving the last four or five doses of Children’s Motrin. In addition, it said two expert witnesses said stopping the drug sooner would have improved Brianna’s prognosis.
Doctor’s Personal Experience
McNeil also argued that the court erred in excluding testimony that Brianna’s doctor suffered from SJS/TEN 10 years before. The panel said the doctor testified that she did not know that ibuprofen could cause SJS/TEN.
In addition, the panel said McNeil failed to establish that a rash is a precursor for SJS/TEN.
The defendant next argued that the trial court erred in failing to instruct that if Alicia Maya was adequately warned, she would have heeded the warning. McNeil said the trial court initially said it would give such an instruction but never did. It said its closing argument was premised on such an instruction to the jury.
The appeals panel said that because McNeil did not object to the omission of the heeding instruction, it can be deemed waived. “McNeil cannot sit on its hands and now argue that failure to give the jury instruction was reversible error,” the panel wrote.
In addition, the panel said McNeil was not precluded from arguing to the jury that Maya failed to prove that an adequate warning would have prevented Brianna from getting additional doses of ibuprofen.
Alternate Causes Not Excluded
The panel rejected McNeil’s argument that the trial court erred by not instructing the jury about concurrent causes of SJS/TEN. It said the jury heard that Brianna’s concurrent use of an antibiotic, Pediazole, may have contributed to SJS/TEN.
McNeil argued that the trial court erred when it read a jury instruction to not consider the conduct of other drug manufacturers. McNeil objected, but the court declined to issue a correction.
The panel said the alleged mistake did not prejudice McNeil. It said that instruction pertained only to negligent design defect and punitive damages, and McNeil won those claims.
Similarly, the panel said that evidence about other risks of ibuprofen were relevant to the claim of design defect and punitive damages.
FDA Rejected Warnings
McNeil also argued that the trial court erred in allowing the plaintiffs to present evidence about warnings that the Food and Drug Administration rejected. The panel said the court did instruct the jury.
The opinion was written by President Judge Emeritus Kate Ford Elliott. The other panel members were Judge David N. Wecht and Senior Judge John L. Musmanno.
McNeil is represented by David F. Abernethy, Dorothy A. Hickok and Alfred W. Putnam Jr. of Drinker, Biddle & Reath in Philadelphia.
Maya is represented by Scott D. Levensten of the Levensten Law Firm in Philadelphia, Howard J. Bashman of Willow Grove, Pa., and Keith M. Jensen of Jensen & Associates in Fort Worth, Texas.
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