AbbVie Must Pay $38M Award as Depakote Appeal Falls Short

By Bruce Kaufman

AbbVie Inc. must pay $38 million to the family of a teenager whose birth defects were caused by in utero exposure to Depakote, the Missouri Supreme Court ruled ( Barron v. Abbott Labs., Inc. , 2017 BL 320656, Mo. en banc, No. SC96151, 9/12/17 ).

Calling the 2015 jury trial fair, the entire high court Sept. 12 upheld the award of $15 million in compensatory damages and $23 million in punitive damages to the family of Maddison Schmidt. Her family said the antiepilepsy drug caused her spina bifida.

The suit was filed against Depakote maker Abbott Laboratories Inc., which had no comment on the state Supreme Court decision other than to note that AbbVie was responsible for litigation over the drug.

Abbott spun off its branded-drug business into AbbVie in 2013, which is a separate public company. AbbVie didn’t respond to a request for comment.

Failure to Warn

The state high court found the compensatory damages award was based on proof the Depakote label failed to warn that the product posed a “considerably higher risk of overall birth defects than other antiepileptic drugs.”

Punitive damages were supported by evidence that Abbott “deliberately disregarded” the safety of Depakote users because it was “motivated by profits,” the court said.

Defense arguments that the trial judge should have transferred the trial from St. Louis to a neighboring county also were rejected.

Abbott’s headquarters are in Illinois and the child’s mother ingested Depakote in Minnesota, yet the Schmidt family was able to consolidate their claim with those of Depakote plaintiffs with more obvious connections to Missouri.

Abbott even argued that St. Louis, where many high-profile plaintiff’s awards have been rendered, was “biased in general” toward the defendant, the court said. But it failed to identify any particular ruling by the trial court suggesting bias or any particular juror who should have been disqualified for bias, the court said.

Abbott can’t show it was harmed “simply because a fair judge and jury in the city of St. Louis rendered the judgment and verdict rather than a fair judge and jury in St. Louis County,” the court said.

As Abbott waived personal jurisdiction, the U.S. Supreme Court’s recent decision on jurisdiction in Bristol-Myers Squibb Co. v. Superior Court of California had no application to this appeal, the state court said in a footnote.

Judge Paul C. Wilson wrote separately that the plaintiff’s use of Missouri Rule 52.05(a), to combine multiple in-state and out-of-state plaintiffs in a single action, “largely will be prevented in the future by Bristol-Myers Squibb.”

Plaintiffs’ attorneys include Bartimus, Frickleton, and Robertson, and Williams Kherkher Hart Boundas.

Abbott’s attorneys include Armstrong Teasdale, Bryan Cave, and Venable.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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