In an order entered on September 12, 2011, Judge Higbee upheld the $25 million jury verdict for Andrew McCarrell who was diagnosed with inflammatory bowel disease (IBD) as a result of his use of Accutane, the blockbuster acne drug made by Hoffman LaRoche (“Roche”).
Congratulations to the McCarrells on their recent victory and thanks to Dave Buchannan and The SeegerWeiss Firm for a job well done. The greatest part of this case is that it was originally tried in 2007, which resulted in a jury award of $2.6 million for Andrew.
Roche appealed the loss, requesting a new trial.
Unfortunately for Roche, they did get a new trial. Roche even tried to get the most recent verdict thrown out by Judge Higbee, but she would have none of it.
Judge Higbee agreed with the second jury and noted, “McCarrell endured the worst case of pain I ever heard in my 18 years on the bench.”
Facts of the McCarrell Case: Andrew McCarrell took Accutane from June 22, 1995, through October 19, 1995, for the treatment of his acne.
In 1996, McCarrell began to have stomach pain and his condition continued to deteriorate.
This lead to the diagnosis of IBD in November of 1996.
McCarrell underwent four surgeries to remove his colon, rectum and rectal abscesses. He lived with a colostomy bag for four and a half years and continued to suffer from severe abdominal cramping and multiple bowel movements every day with episodes of incontinence. McCarrell took his case to court and the jury returned a verdict of $2,619,000 in his favor.
Roche appealed the case and the Appellate Court remanded the matter for a new trial. The new jury found in favor of McCarrell, awarding him $25,159,530.19 as compensation for disability, impairment, loss of enjoyment of life, and pain and suffering, all of which the jury found was caused by the Accutane usage. Judge Higbee agreed with the jury’s verdict and found no sense of “wrongness” in the jury award since McCarrell was a young active man when he was diagnosed with IBD but now has a permanent condition and is not likely to improve.
In the memorandum supporting her ruling, Judge Higbee highlighted the evidence presented at the trial that supports the jury’s verdict. Specifically, during his testimony, McCarrell described his life with IBD as, “regularly fatigued and coping with constant physical pain.”
He testified to the importance of sports and being active when he was growing up and how he had hoped to coach his children in sports.
He is unable to do so because he is too tired and weak.
He has not slept through the night in fourteen years and feels that his wife has a fourth child as she is constantly caring for him.
McCarrell noted, “My life has been surviving for the past 14 years.” As a result of McCarrell’s testimony and that of his wife and doctors, Judge Higbee noted that this case, “presented a picture of probably the worst case of pain, suffering, and loss of quality of life I ever heard described in my eighteen years on the bench. The verdict stands.”
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