Perhaps the only thing more agonizing than enduring a life-threatening illness resulting in permanent chronic medical difficulties and disabilities is watching your child endure it, and being helpless to stop the pain.
That was the situation for the parents in Reckis v. Johnson & Johnson, who brought a products liability lawsuit against the makers of a children’s pain reliever for failing to warn them of a deadly illness that was rare, but known to manufacturers when they gave the medicine to their daughter.
They watched as a slight fever and sinus congestion morphed into a rash, then blisters then a misdiagnosis of measles. Then they watched while an entire layer of skin sloughed off and her eyes, mouth and nose bled. They were by her side as she nearly died from a brain aneurysm and seizures and as she battled for survival in a medically-induced coma.
She survived. But she’s legally blind. She’ll never be able to participate in athletics. Her cognitive function has significantly diminished. She’s always going to be susceptible to infection. She’ll require daily care for the rest of her life.
And all because of a known side effect of what is considered a relatively “safe” medication for children.
That the drug manufacturer and its parent company knew of this risk and failed to warn about it was central the lawsuit, which was brought soon after a review by the U.S. Food and Drug Administration urged makers of ibuprofen products to include a warning about the possibility of developing this condition. It’s called toxic epidermal necrolysis (TEN). It is rare, but the disease is life-threatening and it can worsen the longer it takes to recognize and the more doses are given.
That’s exactly what reportedly happened in this product liability lawsuit. The father gave his child numerous doses as her condition worsened, and more of the medicine was even given by her pediatrician and even the hospital, once she was admitted. Both her father and medical professionals would all later testify they read the warning labels, and no where was their a specific indicator for TEN or even that a rash or blisters could be a sign of a serious reaction.
Instead, the warning contained a vague indication to discontinue if adverse symptoms or reactions occurred. Incidents of TEN are reported in approximately 6 cases per million. That isn’t a high figure, but given how many people use the drug on a regular basis – including children – and the severity of such a condition, this kind of warning simply wasn’t sufficient.
And that’s exactly what a jury in Massachusetts decided when they heard the case and decided to award the child $50 million, and her parents $13 million for loss of consortium. They determined the child’s ingestion of the drug caused her TEN, defendants negligently failed to provide adequate warning of the known risk and the result was significant harm to child and her parents.
By specific instruction, jurors could not find defendant negligent for failing to specifically warn of TEN, but it hadn’t even indicated that a rash or blisters could be an indication of a more serious problem, and that, jurors decided, was a huge failure in this case.
Recently, the case made its way to the Massachusetts Supreme Judicial Court, where defense appealed that verdict, arguing the amount was excessive, plaintiff’s expert witness was unqualified and the failure to warn claim asserted was preempted by the federal law, per the U.S. Food & Drug Administration.
However, the state’s highest court backed the trial court’s finding and rejected defense claims on these points.
If your child has been injured in West Palm Beach, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Reckis v. Johnson & Johnson, April 17, 2015, Massachusetts Supreme Judicial Court
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Carlson v. Town of South Kingstown – Sporting Spectator Injuries, April 27, 2015, West Palm Beach Injury Lawyer Blog