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SOURCE McGinnis Lochridge
Oklahoma Supreme Court Affirms Botulism Verdict for McGinnis Lochridge Client Against Allergan, Inc.
OKLAHOMA CITY, May 9, 2014 /PRNewswire/ -- An Oklahoma City doctor has prevailed in her long-running legal battle against Botox manufacturer Allergan, Inc. (NYSE: AGN) Dr. Sharla Helton, a successful Ob/Gyn and co-founder of a women's specialty hospital in Oklahoma, contracted botulism after receiving Botox Cosmetic injections in 2006. She took Allergan to trial and won, the jury awarding her $15 million for her injuries. Allergan appealed, but last September the Oklahoma Court of Appeals affirmed the verdict in favor of Helton. On Monday, May 5, 2014, the Oklahoma Supreme Court unanimously denied Allergan's Petition for Writ of Certiorari, thereby ending the appeal. As a result of post-judgment interest accruing during the protracted appeal, Allergan now owes Helton over $18 million. Helton's attorney, Ray Chester of McGinnis Lochridge in Austin, Texas, has represented dozens of other Botox victims. Most of the cases have settled but several are still pending in various courts around the country.
Sharla Helton is a self-made success story. She grew up in a blue collar family in Oklahoma City and put herself through college and medical school at The University of Oklahoma. She became an obstetrician and gynecologist and delivered hundreds of babies in her home town. She later co-founded and was the medical director of Lakeside Hospital. Helton's enviable life and career came crashing down after she was diagnosed by the National Institute of Health with botulism resulting from her June 2006 Botox Cosmetic injections. She experienced profound weakness and fatigability; she was initially bedridden and even after several months she could barely walk 100 feet without being overcome with muscle fatigue. On top of that, her Botox injections also lead to a toxic peripheral neuropathy, causing pain and numbness in her extremities which feels like she is being electrocuted. This turned out to be a permanent condition and necessitated giving up her career.
During the April 2010 trial in Oklahoma City state court, Dr. Helton's lawyers put on evidence that Allergan had known about Botox's botulism dangers for many years but had denied the connection in promotional materials to doctors and patients. One disturbing revelation at trial centered around an Allergan-commissioned study by an independent drug safety company known as Biosoteria, Inc. Biosoteria adjudicated 207 adverse event cases, including Dr. Helton's case, as being due to "spread of toxin" -- an Allergan euphemism for botulism. Allergan then made Biosoteria rewrite the report four times until the number of adjudicated cases was reduced to 26. Biosoteria's name did not appear on the final report and the original Biosoteria report was never disclosed to the FDA or the public until the jury in the Helton case considered it as part of the evidence at trial.
After heated deliberations, the jury returned a verdict of $15 million in favor of Dr. Helton. Allergan appealed, mainly on grounds that there is no evidence that Botox can cause botulism, but the verdict was unanimously upheld by the Oklahoma Court of Appeals on September 6, 2013. In its opinion, the court of appeals rejected each of Allergan's appellate arguments, stating "we conclude the jury had before it ample testimony . . . from which it could arrive at its verdict."
Even with the verdict affirmed, Dr. Helton's fight is not over. Helton continues to support and counsel others injured by Botox injections, "with this lawsuit I had hoped to raise public awareness of the extreme dangers of Botox and the risk of botulism. I am grieved at the phone calls I regularly receive from victims who had never been warned of the risks. Their lives are devastated." Helton comments, "if I can gain one thing by this lawsuit it is to bring an understanding of the risks to the medical community and the public."
Helton was represented by Ray Chester who, along with his litigation team, have represented dozens of other Botox victims. In 2011, their client, Douglas Ray, received a verdict of $212 million from a Richmond, Virginia federal jury in Ray v. Allergan. It was reputed to be the highest single plaintiff personal injury verdict ever awarded in the state of Virginia. That case later settled for a confidential amount. Allergan has settled approximately 15 other Botox cases with Chester's firm; on two occasions the settlement occurred during trials which were perceived not to be going well for Allergan. Chester's firm continues to represent individuals represented by Botox, with the next one set for trial in November of this year.
Chester's other clients range from adults who wanted to remove a few wrinkles to young children with cerebral palsy who received high dose, off-label Botox to treat spasticity. The one common thread among almost all cases is that the treatments were off-label, meaning not approved by the FDA. Allergan plead guilty to criminal off-label promotion in 2010 and paid $600 million in fines.
McGinnis Lochridge is a Texas-based firm providing quality legal services for more than 85 years. We work with individuals, small and medium businesses, large enterprises and multinational Fortune 500 corporations. From our offices in Austin and Houston, we represent clients throughout Texas, the United States and the world.
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