By Georgia D. Koutouzos, J.D.
Jury found clear and convincing evidence that the pharmaceutical giant is liable for punitive damages.
A jury in Philadelphia awarded $8 billion in punitive damages against Johnson & Johnson’s (J&J) Janssen Pharmaceuticals—manufacturer of the prescription anti-psychotic drug Risperdal®— after a patient who had taken that drug as a juvenile to ease certain symptoms of autism spectrum disorder suffered gynecomastia. Calling the verdict "grossly disproportionate" with the initial compensatory award in the case, J&J said in a statement on the verdict that it would be moving immediately to set the verdict aside (Murray v. Janssen Pharmaceuticals, Inc., October 8, 2019, Powell, K.).
An adolescent male had been prescribed Risperdal by several of his treating physicians because he had trouble sleeping due to what his pediatric psychiatrist called "autism spectrum disorder." He took the drug for that off-label use from April 2003 until February 2008, and apparently developed serious side effects, including abnormal breast growth, tardive dyskinesia (TD), involuntary movement disorders, and weight gain. The patient filed suit against Janssen Pharmaceuticals in Pennsylvania state court, alleging that the drug maker negligently failed to warn his physicians and health care providers of those risks. His complaint included counts for negligence, negligence-design defect, strict product liability-failure to warn, strict product liability-design defect, breach of express and implied warranties, fraud, violation of Pennsylvania’s consumer protection laws, and unfair and deceptive trade practices. He sought both compensatory and punitive damages.
His lawsuit was coordinated with other similar cases in a mass tort action in Pennsylvania and went to trial. In 2015, a jury found in his favor and awarded him $1.75 million in noneconomic damages [see Products Liability Law Daily’s November 10, 2015 analysis]. Janssen moved for judgment notwithstanding the verdict (JNOV) on several grounds, including the assertion that it was not liable for off-label use of the drug. While upholding the verdict, the trial court subsequently reduced the compensatory damages award to $680,000 pursuant to a Maryland statutory cap on noneconomic damages [see Products Liability Law Daily’s March 21, 2016 analysis].
Both parties appealed, and the superior court found that the evidence was sufficient to support the jury’s finding that Risperdal had caused the patient’s gynecomastia. The appellate court also ruled that the trial court should not have granted Janssen’s global motion for partial summary judgment on the issue of punitive damages without having considered the unique circumstances of each case in the mass tort action such as the locations of the place of injury and domicile, along with the governmental interests of those locations. The superior court remanded the punitive damages issue to give the patient the opportunity to create an individual record relating to the choice of law principles involved in his particular case [see Products Liability Law Daily’s February 21, 2018 analysis].
On remand, the jury determined that the patient proved by clear and convincing evidence that Janssen was liable for punitive damages, awarding the patient $8 billion in punitive damages. In response to the verdict, J&J characterized the award as "excessive and unfounded," and a "clear violation of due process." The company was precluded from presenting a meaningful defense due to the trial court’s exclusion of key evidence, J&J charged, contending that as a result, the jury did not hear evidence as to how the label for Risperdal clearly and appropriately outlined the risks associated with the medicine.
The case is No. 1990.
Attorneys: Thomas R. Kline (Kline & Specter PC) for Nicholas Murray. David F. Abernathy (Drinker Biddle & Reath LLP), John D. Winter (Patterson Belknap Webb & Tyler LLP) and Ethel J. Johnson (Morgan Lewis & Bockius LLP) for Janssen Pharmaceuticals, Inc., Johnson & Johnson and Janssen Research & Development, LLC.
Companies: Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Janssen Research & Development, LLC
MainStory: TopStory JuryVerdictsNewsStory DamagesNews DrugsNews PennsylvaniaNews MarylandNews
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