HLD, v. 30, n. 2 (February 2002)
Oregon Appeals Court Says Punitive Damages Award Of Over $55
Million Against Pharmaceutical Company Was Not Excessive
Paul R. Bocci, Jr. suffered from asthma and was a long-time user
of Key Pharmaceuticals, Inc.'s (Key) prescription asthma medication Theo-Dur.
In October 1990, Bocci took the prescription antibiotic ciprofloxacin for a
skin rash, failing to tell the prescribing physician that he was taking
Theo-Dur. Suffering from nausea, vomiting, and diarrhea, Bocci went to an
urgent care clinic where Frederick D. Edwards, M.D., diagnosed gastroenteritis
and sent him home. Edwards did not diagnose theophylline toxicity because
Theo-Dur had been promoted to him as a safe drug and he did not believe that a
patient on a stable dose of the drug could develop a serious toxicity problem.
After returning home, Bocci experienced seizures and was admitted to a hospital
emergency room. Hospital personnel treated Bocci for theophylline toxicity.
Bocci suffered permanent brain damage from the seizures.
Bocci sued Key and Edwards in state trial court. Edwards
cross-claimed against Key, alleging negligence and fraud for failure to provide
adequate information about the potential toxicity of Theo-Dur. The jury
returned verdicts in favor of Bocci and Edwards against Key, awarding Bocci
more than $5 million in compensatory damages and $35 million in punitive
damages. The jury also awarded Edwards $500,000 in compensatory damages and $22
million in punitive damages. Key moved for judgment notwithstanding the verdict,
arguing that the $57 million punitive damages award was unconstitutionally
excessive. The trial court denied the motion and Key appealed. The appeals
court affirmed the trial court's judgment but the Oregon Supreme Court vacated
the decision and remanded the case to the appeals court for reconsideration in
light of Parrott v. Carr Chevrolet, Inc., 17 P.3d 758 (Or. 2001), which
reiterated the standard for post-verdict judicial review.
On remand, the Oregon Court of Appeals held that, given the type
of review of punitive damages that Key sought, the trial court did not err in
concluding that the punitive damages award was not unconstitutionally
excessive. The appeals court rejected Key's claim that both the jury and the
trial court over-emphasized Key's financial condition. Instead, the appeals
court determined that "[t]he jury specifically found by clear and convincing
evidence that Key knowingly withheld information or misrepresented information
concerning toxicity problems associated with Theo-Dur." The appeals court
concluded that the "evidence demonstrated a strong connection between Key's
profits and the misconduct for which punitive damages were awarded."
Accordingly, the appeals court affirmed the judgment of the trial court.
Bocci v. Key Pharms., Inc., 35 P.3d 1106 (Or. Ct. App. Nov.
14, 2001) (8 pages).