Anna Aguillard Nov. 12, 2015, 12:02pm


PHILADELPHIA – A recent decision in a Philadelphia court dismissed the claims of 13 plaintiffs who alleged that they developed gynecomastia after taking the drug Risperdal during adolescence.

Despite being filed in a Pennsylvania court, the local judge held that the plaintiffs, whose injuries occurred in Michigan, were subject to Michigan law – and they failed to prove that the defending drug manufacturer broke Michigan law.

Frequently, plaintiffs cross state lines to file suit in Pennsylvania courts because its laws are more pro-plaintiff, according to Reed Smith attorney Stephen McConnell.

Michigan’s legal environment is much more pro-defense, and its Products Liability Act offers companies immunity as long as they do not withhold information from, misrepresent facts to, or bribe the FDA, he said.

“Pennsylvania has long been pegged by plaintiff lawyers as a place with generous juries and accommodating judges,” McConnell said.

The 13 plaintiffs, a small portion of the thousands filing suit in the mass tort litigation against the drug manufacturers of Risperdal, wanted to avoid Michigan’s stricter requirements. They filed suit in Pennsylvania, arguing that Pennsylvania law should apply to their case, because one of the defendants was alleged to have concealed information regarding Risperdal’s safety in Pennsylvania.

However, Judge Arnold New, of the Philadelphia Court of Common Pleas, ruled that because Michigan was the location in which the majority of the alleged punitive conduct occurred – the place where the plaintiffs were prescribed and consequently took Risperdal – they must subscribe to Michigan law.

The judge wrote that Pennsylvania does not want to become “a repository for cases filed by Michigan residents seeking to avoid application of the Michigan Products Liability Act.”

McConnell applauded the judge for “being careful to apply laws, including the laws of other jurisdictions.”

Because the judge ruled that Michigan law applied to the case, the plaintiffs then had to argue that the defendant’s actions violated Michigan law in order to succeed.

The plaintiffs' argument that the drug manufactures violated the Products Liability Act also failed to hold up under the judge’s scrutiny.

The plaintiffs alleged that the FDA had not approved of the drug for adolescent use because the label did not indicate so, but the judge upheld that physicians can legally use pharmaceuticals for off-label purposes.

They also alleged that the defendants withheld information from the FDA that would have otherwise caused the drug to be disapproved. However, the judge ruled that they failed to present facts that supported their claim.

Lastly, the plaintiffs argued that a prior guilty plea by one defendant indicated that the defendant was guilty. The judge declared the prior guilty plea wholly irrelevant to the matter at hand.

The decision discourages plaintiffs from seeking refuge from strict state laws in states with softer laws, and maintains Michigan’s pro-defense legislation, McConnell said. 

“It is certainly welcome by anyone who cares about federalism and fair play,” he said.

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