As my colleague Andy Frey and I reported in an earlier post, an Illinois federal jury in July returned a $150 million punitive verdict against AbbVie without awarding the plaintiff any compensatory damages.  That verdict is likely to be thrown out because Illinois does not permit punitive damages to be recovered in the absence of compensatory damages.

Now, less than three months later, another Illinois federal jury has imposed $140 million in punitive damages against AbbVie for the same alleged conduct—namely, failure to disclose that its low-T medication AdroGel can cause heart attacks. Even putting aside AbbVie’s other challenges to the verdict—which include attacks on the admission of expert testimony and the sufficiency of the evidence that the plaintiff’s heart attack was caused by his two months of AndroGel use—the punitive award is unlikely to stand because it is 1000 times the jury’s $140,000 compensatory award.

Needless to say, a punitive/compensatory ratio of 1000:1 is grossly excessive under the Supreme Court’s decisions in BMW and State Farm when, as here, the compensatory damages are far from “small.”  Indeed, the ratio is so high as to suggest either that the jury was animated by passion and prejudice or that it was impermissibly seeking to punish AbbVie for the effect of its alleged non-disclosure on other AndroGel users in violation of the Due Process Clause’s prohibition of punishment for harm to non-parties—or both.

If the district court concludes that the jury was animated by passion and prejudice, the proper remedy would be a new trial on all issues. If the court instead concludes that the jury impermissibly punished AbbVie for the effect of its alleged non-disclosure on non-parties, it could either award a new trial on the amount of punitive damages or order a remittitur to an amount of punitive damages that, if replicated in the cases of all other similarly situated plaintiffs, would not yield an excessive aggregate punishment.  Allowing this plaintiff any more than his apportioned share of the maximum permissible aggregate punishment would be an insufficient remedy for the Due Process violation.

Both cases are likely to yield some interesting rulings. We will keep an eye out for them and analyze them for our readers in future posts.