Risperdal Plaintiffs Gain Leverage in Wake of $70M Verdict

The $70 million verdict a Philadelphia jury levied against Janssen Pharmaceuticals on July 1 may not survive challenges that it is excessive, but the award was a definitive win for the plaintiffs in the Risperdal mass tort litigation, attorneys who work in the pharmaceutical arena said.

A Philadelphia jury July 1 returned the award against Janssen and in favor of a boy who claimed the antipsychotic drug, Risperdal, led to excess growth of breast tissue. The plaintiffs in A.Y. v. Janssen Pharmaceuticals had argued that the company knew the medication caused the condition, but failed to properly inform the medical community, emphasizing potential profits for the drug over its safety.

Attorney Jason Itkin from the Houston-based firm Arnold & Itkin tried the case for the plaintiffs, and Drinker Biddle & Reath attorney David Abernethy tried the case for Janssen.

The award, according to Duane Morris attorney Alan Klein, who often represents generic-drug companies, was a "quantum leap" in the litigation, as the previous highest verdict in the Risperdal mass tort had been a $2.5 million award.

Mass torts attorney Max Kennerly of Kennerly Loutey, who represents plaintiffs, agreed that the verdict was an "obvious" win for the plaintiffs, and said it put much of the leverage in the plaintiffs' hands. He noted the verdict was the fifth time a jury found the company negligently failed to warn about the drug, and said the latest verdict indicates the potential for the damages as well.

"It seems that as this moves forward, the liability proof and the causation proof are just getting stronger and stronger," Kennerly said. "I don't see much of an upside for the defendants."

However, attorneys noted that an appeal is coming, and several questioned whether the full amount will survive a remittitur challenge.

Although attorneys agreed it is impossible to predict how a court may rule on an issue, one attorney noted that in the case Polett v. Public Communications, the state Superior Court recently struck down as excessive a $27.6 million verdict over a knee implant.

"I'd rather be the appellee than appellant ... but I don't see how they can substantiate a verdict for those damages," Cozen O'Connor products liability attorney James Heller said.

Kennerly agreed, but added that, even if the verdict is reduced, it could still be very significant.

"The number is huge. It's difficult to see such a number surviving intact through an appeal," Kennerly said. "That said, the jury has very wide latitude to determine the extent of damages and to assess them appropriately."

Klein, who represents both plaintiffs and defendants in products liability cases, said that, although the plaintiffs are sympathetic, the size of the verdict showed the jury was angry.

The plaintiffs in the Risperdal mass tort all took the medication to help control mental health issues, including symptoms related to autism, Tourette syndrome and, in the latest case, violent oppositional behavior. Klein observed the injuries are not life threatening or a major impairment of life activities. He surmised that the size of the verdict was intended to signal to the drugmaker the jurors' disapproval of the company's conduct.

"It leaves me to suspect the jury was very unhappy at the defendant," Klein said. "Something that came out at the trial set the jury off significantly."

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Source: The Legal Intelligencer