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Jury awards $23M punitive damages in birth defect case

A St. Louis jury added $23 million in punitive damages to the $15 million they earlier awarded a 12-year-old girl, finding a drug manufacturer didn’t do enough to warn doctors about birth defect risks.

After her birth mother took the anti-seizure drug Depakote, plaintiff Maddison Schmidt, a Minneapolis area resident, was born with spina bifida. Spina bifida is a condition where a baby’s spinal column doesn’t close all the way when the baby is in the womb, potentially causing health problems.

Maddison has physical disabilities and intellectual challenges, plaintiff’s attorney John Eddie Williams Jr. said.

The jury unanimously awarded the $15 million in compensatory damages against Abbott Laboratories in St. Louis Circuit Court on Monday. The vote on punitive damages Wednesday was nine to three.

In live testimony or depositions, the jurors heard from 12 witnesses from Abbott, and all the witnesses were at fault for not revealing enough about the risks, juror Michael DiBartolo said. The jurors were “putting dollar amounts on people’s mistakes,” DiBartolo said.

He said the $150 million in punitive damages plaintiff’s attorney Williams requested was a ballpark starting point but was “obviously ridiculous.”

Defense attorney Paul Strain of Venable declined to comment after the verdict.

Strain, in arguing against punitive damages Tuesday, said the jurors already had made their point in awarding $15 million to Maddison.

“Your message has been received,” Strain told the jurors. “I get it. Abbott’s going to get it loud and clear.”

Attorney John Boundas said during closing arguments Friday that Maddison faces $9 million to $19 million in medical expenses and a loss of $1 million in earning potential because of her birth mother’s use of Depakote while pregnant.

Maddison, who lives in the Minneapolis area, is one of about 25 plaintiffs who filed claims in St. Louis Circuit Court over Depakote, produced by the company then known as Abbott Laboratories Inc. AbbVie, which split from Abbott in early 2013, now produces Depakote and is responsible for any litigation liabilities connected to it, according to a March 2013 AbbVie annual report filed with the Securities and Exchange Commission.

Another set of claims over the medicine is pending in U.S. District Court in Southern Illinois.

Boundas, of Houston, Texas, firm Williams Kherkher Hart Boundas, contended that Abbott underplayed the risk of birth defects, making it appear that Depakote had about the same level as other anti-epileptic drugs available at the time Maddison’s birth mother, Tiffany Vititoe, became pregnant. In reality it was the most dangerous, Boundas said at the end of the two-week trial. Abbott should have told doctors to try all other drugs before Depakote to patients who were women of child-bearing age, he said.

“Just say it,” Boundas said. “But they didn’t.”

Strain said that Depakote had stronger warnings about birth defects than any other on the market at the time. That included a “black box” warning, the most serious mandated by the U.S. Food and Drug Administration, he said. Vititoe was well aware of the risks — six doctors told her about the possibility of birth defects — but chose Depakote because no other drug was as effective at controlling her seizures, Strain said.

“Tiffany Vititoe knew because her doctors told her. They knew because they’d been warned,” by Abbott, Strain said.

About Heather Cole

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