Depakote Settlement Increased with Punitive Damages

St. Louis, MOIn the first of a possible series of Depakote trials, a jury awarded $15 million in compensatory damages. The St. Louis jury then added $23 million in punitive damages to a 12-year-old girl with spina bifida, which is a birth defect associated with Depakote.

Maddison Schmidt was born with spina bifida - a condition where a baby’s spinal column doesn’t close all the way when the baby is in the womb - after her birth mother, Tiffany Vititoe, took the anti-seizure drug during her pregnancy. Maddison also suffers from physical disabilities and intellectual challenges, according to the lawsuit.

According to Abbott Laboratories, the drug company that made Depakote said that Vititoe knew about Depakote birth defects and that six doctors had warned her of possible side effects but still chose Depakote because no other drugs were as effective in controlling her seizures. However, Maddison’s attorney, John Boundas, argued that Abbott should have told doctors to try all other drugs before choosing Depakote to patients who could potentially become pregnant.

Abbott’s attorney told the jury that doctors had been warned, but the jury didn’t see it that way. The jury’s vote on $23 million punitive damages was nine to three. Maddison’s lawyer was asking $150 in punitive damages. According to Missouri Lawyers Media (May 27, 2015), Maddison’s medical expenses could run anywhere from $9 million to $19 million and a loss of $1 million in potential earnings because of her mother’s Depakote use while pregnant.

John Bonner, who was also born with spina bifida in 1994, blamed his condition on Depakote taken while his mother Chantele was pregnant with him. He sued Abbott for failure to warn and related claims. The US District Court for the Southern District of Illinois determined that scientific evidence dating back to the 1980s shows Depakote to be more toxic than alternative anti-epilepsy drugs in general use during the last three decades. The court also found that the warning Abbott provided did not include that research. Nor did it acknowledge a cause-and-effect relationship between the use of its drug and birth defects.

Health Law Week reported in May 2014 that the court further held the requirement that the plaintiff show that the treating physician who prescribed the medication at issue would have changed his decision if provided with an adequate warning was met by testimony provided by Chantele’s doctor. That physician testified that if the state of medical knowledge was as alleged in 1994 and made known to him, it would have changed his prescribing habits of Depakote.

About two dozen plaintiffs and their attorneys who also filed claims in St. Louis Circuit Court have no doubt been following the St. Louis Depakote trial with great interest. More Depakote claims have also been filed in US District Court in Southern Illinois. (AbbVie split from Abbott in early 2013 and is now the Depakote manufacturer, therefore responsible for any litigation liabilities connected to it.)