SJS Victim Loses Out to Virginia State Law

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Chicago, ILA woman who sued the maker of Children's Motrin after an allergic reaction to the drug left her nearly blind was sent away empty-handed when the jury found her own negligence to be a contributing factor in the damages she suffered.

According to the December 11 issue of Health Law Week, plaintiff Karen Robinson, age 40, had taken a dose of Children's Motrin to fight the effects of a headache. An allergic reaction to the medication sent her to see a doctor in September 2005, who sent her to the hospital a day later with a diagnosis of toxic epidermal necrolysis (TEN), a severe form of Stevens-Johnson Syndrome (SJS). Robinson was hospitalized for a month with severe internal and external burning, and ultimately lost vision in her left eye and partial vision in her right eye.

Robinson sued McNeil Consumer Healthcare, alleging defective design and inadequate warnings. Following trial, a federal jury in Chicago found the manufacturer of Children's Motrin negligent and awarded Robinson $3.5 million.

Yet Virginia state law and a recent ruling by the US District Court for the Northern District of Illinois will probably prevent Robinson from receiving any of that money.

The presiding federal judge in Illinois had earlier ruled that Virginia law would apply to the case, since Robinson was a resident of Virginia at the time of her injuries. Under Virginia contributory negligence laws, plaintiffs are barred from recovering any damages if their own negligence is found to have played any role in the damages suffered.

Robinson had continued ingesting the Motrin even after developing the allergic reaction to the product, and did not consult the warning labels at that time. She also failed to raise the Motrin issue with her physician. In light of these events, the federal jury issued a finding of contributory negligence against the plaintiff. The district court agreed that the evidence was sufficient to support that finding.

It should be noted that strict contributory negligence laws are rare in the US. Only Virginia, Maryland, Alabama, North Carolina and the District of Columbia bar recovery of damages if a plaintiff is even one per cent at fault. Most states observe the modified "comparative negligence," which reduces the damages in proportion to the amount of the plaintiff's own negligence, rather than barring them from receiving any damages at all.

But Robinson will likely see nothing for her SJS injuries.

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