The American Home Products Co. may have deserved the punishment, but does Douglas J. Axen have a right to take half of it home?
We are talking about an award of $20 million in punitive damages against the pharmaceutical company. In a case from Oregon now pending on a petition for review, the Supreme Court is asked to take a look at a relatively new development in tort jurisprudence. The states have entered the orchards of civil litigation, ready to pick up any windfalls that come their way.
This is the story as told by Oregon's Court of Appeals:
In 1994 Douglas Axen collapsed while running. He was then 56 years old. His cardiologist diagnosed his condition as severe and life-threatening cardiac arrhythmia and recommended a drug known technically as amiodarone, marketed under the trade name of Cordarone. The Food and Drug Administration had approved the drug in 1985.
Beginning in 1986, medical studies began to link Cordarone with vision loss and optic neuropathy. The company knew of these critical studies. In August 1994, when Axen began taking the drug, the package insert warned of many serious side effects. Among these were "optic neuritis," or inflammation of the optic nerve, said to occur in fewer than 1 percent of the patient population. The package contained no warning against optic neuropathy.
It took only a month for Axen to notice changes in his vision. In November his cardiologist took him off the drug, but the deterioration continued. Because of "irreversible degeneration and atrophy of the optic nerve in each eye," Axen is now legally blind.
Axen sued American Home Products for intentional failure to warn that Cordarone could cause permanent loss of vision. His wife joined in the suit. Eventually a jury awarded her $936,000 (reduced to $500,000), but this is no longer at issue. The total award amounted to $22,843,657, including $20 million in punitive damages. The company protested that the award was irrational, ill-considered and excessive, but this was only part of its complaint.
The company also challenges an Oregon law by which the state itself takes roughly half of an award of punitive damages. Since 1990 at least half a dozen other states have adopted similar laws. The Eighth Amendment says that "excessive fines shall not be imposed." If Oregon makes off with half of the $20 million awarded in this case, has the Eighth Amendment been implicated? Is the 50-50 allocation tantamount to a "fine"? That is the company's contention.
Universal Press Syndicate