Richmond U.S. District Judge Robert E. Payne said courtroom security video helped him decide that a trial that produced a $212-million verdict against a Botox manufacturer was unfair. Payne has vacated the 2011 jury verdict and ordered a new trial.
The decision turned on hand gestures used by the plaintiff’s lawyer in closing arguments. The lawyer had agreed to avoid any reference to an official FDA “black box warning” about the dangers of Botox side effects, but he apparently used his hands to indicate a box as he talked to the jury about the need for a voluntary warning.
Payne ruled Friday the combination of the lawyer’s argument and his hand gestures made for an unfair trial under the agreed-upon jury instructions.
A settlement conference with a magistrate judge is set for June 19.
The $212-million verdict had been reduced to $12.35 million under Virginia’s cap on punitive damages.
The trial focused on whether severe nerve damage suffered by a Fredericksburg-area man was caused by Botox or by an underlying medical condition. The man had been using Botox to treat a tremor condition.