Parents of Melinda Ann “Mandy” Fortuna of Shelburne, Vermont filed suit yesterday against Allergan, Inc., alleging that a series of off-label Botox overdoses were responsible for their daughter’s death. Mandy Fortuna died in her sleep on September 25, 2014. An autopsy revealed no medical explanation for her death which was found to be as a result of “atypical pneumonia.” Mandy Fortuna, who was diagnosed with cerebral palsy early in life, underwent a series of off-label Botox injections at the hands of Dr. Scott Benjamin of Burlington, Vermont. The last set of injections occurred on September 5, 2014, approximately three weeks prior to her death.
In November 2014, two months after Mandy’s death, the Fortuna’s read in the Burlington Free Press that another child treated by Dr. Benjamin developed a seizure disorder following Botox injections. That earlier case went to trial in the United States District Court for the District of Vermont on November 3, 2014 and resulted in a $6.75 million verdict in favor of Joshua Drake and his family. The verdict in the Drake case included an award of $4 million in punitive damages against Allergan for outrageous conduct including illegal off-label promotion of Botox to treat children with cerebral palsy and associated muscle spasticity.
The Fortuna’s became suspicious about Mandy’s unexplained deterioration in health and subsequent death after reading about the Drake verdict and realizing that Mandy had received Botox injections from the same doctor. After obtaining the injection records from Dr. Benjamin, the Fortuna’s were able to confirm that Mandy Fortuna received an overdose of Botox, just like the child in the earlier case, Joshua Drake.
The Fortuna’s are represented by Ray Chester and the products liability team from McGinnis Lochridge, LLP in Austin, Texas. Mr. Chester and his team also represented the Drakes in the earlier Vermont lawsuit. In the Drake case, Chester brought forward evidence that Allergan sales representatives encouraged Dr. Benjamin to use high doses of off-label Botox on children, but then after Joshua Drake developed a seizure disorder, Allergan reported the event to the FDA as an overdose.
The McGinnis Lochridge team has been litigating Botox cases since 2009, and have won several notable victories. In 2010, the McGinnis Lochridge team achieved a $15 million verdict for Dr. Sharla Helton, an OB/GYN from Oklahoma City who received cosmetic Botox injections. Allergan appealed that verdict but it was subsequently affirmed by the Oklahoma Court of Appeals and the Oklahoma Supreme Court.
In 2011, Chester and his team received what was reported to be the largest single plaintiff personal injury verdict ever awarded in the State of Virginia. That verdict was $212 million and included a $200 million punitive damages award. The case later settled for a confidential amount.
Chester’s other clients range from adults who wanted to remove a few wrinkles to young children with cerebral palsy who received high dose, off-label Botox to treat spasticity. The one common thread among almost all cases is that the treatments were off-label, meaning not approved by the FDA. Allergan plead guilty to criminal off-label promotion in 2010 and paid $600 million in fines.