Anna Aguillard Nov. 11, 2015, 2:31pm


PHILADELPHIA – A Philadelphia judge has issued an opinion that prevents plaintiffs in Risperdal cases from seeking punitive damages.

Last month, Judge Arnold New, Supervising Judge in the Philadelphia Court of Common Pleas, Trial Division, released an opinion explaining why punitive damages are barred in nearly all of the 1,500 Risperdal mass tort claims filed in the court's Complex Litigation Center, holding that cases must subscribe to the laws of the states in which the alleged punitive conduct actually occurs.

The decision comes after a May 2015 in which the federal court in Philadelphia reached the opposite conclusion in a suit filed after the drug Tylenol allegedly caused the death of a consumer in Florida.

To attorney Sarah O'Donohue, an associate at Alston & Bird, this discrepancy points to the need for the Pennsylvania Supreme Court to clarify which state’s laws should be applied in circumstances that involve multiple states. 

“Although the Pennsylvania high court has yet to specifically rule on this issue, the opinions in the Risperdal and Tylenol litigation have once again shown it to be a critical one that could create an issue for appeal and affect settlement discussions,” O’Donohue said.

 “One key difference in these opinions is the judges’ reading of a 2011 Pennsylvania Superior Court case, Daniel v. Wyeth Pharmaceuticals, Inc. Judge New focused on the Daniel court’s statement that, in the punitive damages context, the most critical element in the choice-of-law analysis is the place where the alleged punitive conduct occurred, while Judge Stengel found the same statement to be unpersuasive dicta,” O’Donohue said.  

In cases against drug manufacturers, plaintiffs often attempt to file cases in Pennsylvania, because state lawallows recovery even when the product in question was approved by the FDA, as was Risperdal. In fact, more than 85 percent of plaintiffs with cases in the CLC are from out-of-state. 

In the Risperdal case, the plaintiffs claimed that the drug caused gynecomastia, or enlarged breasts, in males that were prescribed the drug. They alleged that Johnson & Johnson, the drug’s manufacturer, suppressed unfavorable test results from the medical community in order to maximize profits.

Despite the fact that Johnson & Johnson is principally located and incorporated in New Jersey, the plaintiffs filed suit in Philadelphia, claiming that because decisions concerning the development, marketing, and labeling of Risperdal were made in Pennsylvania, Pennsylvania law applied to their suit.

However, Johnson & Johnson moved for partial summary judgment, arguing that New Jersey law applied to the litigation. The manufacturer had an advantage in New Jersey, because the New Jersey Products Liability Act protects drug companies from issuing damages if the FDA approved their drug, unless the drug manufacturer misrepresented facts to or withheld information from the FDA.

New decided in favor of Johnson & Johnson, holding that New Jersey is the place where the alleged punitive conduct occurred, where the defendant is headquartered, and where all FDA correspondence was delivered.

Given that New Jersey law applied, the plaintiffs could not seek punitive damages because they lacked evidence that Johnson & Johnson misrepresented or withheld information from the FDA.

His decision opposes the May decision from U.S. District Judge Lawrence Stengel regarding litigation against Johnson & Johnson over damages caused by Tylenol in Alabama.

Stengel, of the Eastern District of Pennsylvania, ruled that although New Jersey is where Johnson & Johnson is headquartered, and where marketing decision were made, Alabama actually had the most significant interest in the case, because Alabama was where the decedent purchased Tylenol, ingested it, was treated and ultimately died.

Additionally, Alabama was the state in which the decedent received warnings about Tylenol and where the decedent viewed advertisements for the drug, he ruled.

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