Developments in Depakote Litigation as Illinois Federal Jury Returns $15 Million Verdict
In the sixth case to go to trial over Depakote, a drug used to treat seizures and bipolar disorder, a federal jury in the Southern District of Illinois returned a $15 million verdict earlier this month. Earlier trials in federal courts in Ohio and Illinois resulted in defense verdicts, but a state jury in Missouri previously awarded $38 million to a group of 25 plaintiffs.
This most recent trial addressed the claims of one of the lead plaintiffs in a mass action numbering over 600 individual plaintiffs. The primary claim central to those plaintiffs is the alleged failure to warn that the risks of having a baby born with spina bifida or other malformations was greater than the labeled warning.
Following a two week trial, and after deliberating for nearly two full days, the jury agreed with plaintiff assertion that the doctors who prescribed the drug to the plaintiff’s mother were not aware that the mother’s risk of having a baby born with spina bifida or other malformations was greater than 10 percent. According to the evidence presented at trial, the doctors who were treating the mother for her severe bipolar disorder only saw a label for Depakote that described the risk of spina bifida as 1-2 percent.
During closing arguments, counsel for the plaintiff asked the jury to award $40 million to cover the child’s future medical care costs, lost potential wages and emotional suffering, and for punitive damages. The jury rejected the punitive damages claim and returned a verdict roughly one third of what plaintiff sought.
Following the verdict, the judge presiding over the trial issued an order rendering it immediately appealable. Typically, in federal court, claims may not be appealed until there is a full and final resolution of all claims against all parties. However, a judge may direct entry of a final judgment allowing for an immediate appeal to take place where the court expressly determines there is no just reason for delay. In rendering its decision here, the judge noted that “an appellate decision as to the issues that have arisen in preparation for and during the trial is necessary to advance the mass action litigation.” Thus, any forthcoming appellate decision concerning this case may be useful in assessing and resolving the hundreds of remaining cases.
In addition to the half dozen trial resolutions, some of the pending cases have been resolved in favor of the defendant through dispositive motions. In April of this year, Judge Nancy J. Rosenstengel of the Southern District of Illinois dismissed the claims of nine plaintiffs, all of whom were residents of Indiana, and for whom all prescribing decisions, conception, gestation, and birth occurred within Indiana.
After conducting a choice of law analysis, Judge Rosenstengel determined that Indiana applied to these claims. The Indiana Statute of Repose provides for a ten year window to file a claim, without a tolling exception for those suffering from a legal disability, including minority status. There was no dispute that each of the nine claims was filed more than ten years after the injured plaintiffs were born. Consequently, Judge Rosentstengel granted summary judgment dismissing the claims of these plaintiffs based on the expiration of the Indiana Statute of Repose.