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Lawyer’s hand gestures cause $212M Botox case to be retried

A $212 million verdict against Botox-maker Allergan will be retried because of improper hand gestures by the plaintiff’s attorney, who also allegedly broke the “golden rule” in closing arguments.

War vet Douglas Ray sued Allergan for failing to warn about the risks of Botox injected into muscle tissue to treat hand tremors that led to brain damage.

During trial, the defense argued that Allergan could not have unilaterally printed a black box warning without FDA approval. The plaintiff’s attorney, Ray Chester, agreed not to argue that Allergan should have used a black box label, and agreed to limit his arguments to the contention that Allergan should have displayed more prominent warnings on its label.

In closing arguments, Chester told the jury that Allergan should have put its warnings “right up front in the label” in “big, bold letters.” Allergan’s attorney objected that Chester made hand gestures that suggested a boxed warning.

The trial judge, U.S. District Court Judge Robert Payne, did not see the hand motions and overruled the objection. After the trial, at Allergan’s request, the judge reviewed a courtroom security video.

In a 32-page decision, the judge said that although the videotape was “not definitive,” he should have instructed the jury that Allergan could not have printed a black box label on its own without first going to the FDA.

The judge also ordered a new trial on the grounds that Chester broke the “golden rule” by asking jurors “Can you imagine?” after describing when his client first realized he could no longer walk, talk or think right, even though the defense did not object at the time.

After the ruling Chester said, “I wasn’t trying to draw a black box. The jury couldn’t care less about a black box and a $212 million verdict certainly didn’t turn on hand gestures.”

Chester said on retrial he will ask the jury to award more in actual damages and less in punitive damages than the first time around. The first jury awarded $12 million in compensatory damages; its $200 million punitives award faced a state law cap of $350,000.

Chester also said he plans to use new evidence that emerged since the first trial that he says supports his argument that Allergan delayed informing U.S. doctors of the risks of Botox years after it warned doctors in Europe.

“The reason they didn’t send Dear Doctor letters in the U.S. until two to three years [after my client was injected] was because they were concerned about sales. We found an email that backs that up,” Chester said.

Allergan’s attorney, Ellen Darling of K&L Gates in Irvine, Calif., did not immediately return a call for comment.

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