PENNSYLVANIA RECORD

A Philadelphia jury recently returned a hefty plaintiff’s verdict of nearly $11

million in a Topamax mass tort case brought by the mother of a 5-year-old boy born with a cleft palate and lip, a condition the woman blamed on her use of the anticonvulsant.

The jury awarded $10,955,000 to Haley Powell, a South Carolina woman who filed suit against Janssen Pharmaceuticals in November 2011 at the Philadelphia Court of Common Pleas, court records show.

In her short-form complaint, filed in the master Topamax Litigation housed in Philadelphia’s mass tort program, Powell claimed that her use of the anti-epileptic medication during pregnancy caused her child, Brayden Gurley, to be born in the summer of 2008 with the facial deformation.

The lawsuit said that Powell ingested Topamax from about March 2006 to about May 2011 in doses of between 25 mg and 50 mg each day.

Her physician had prescribed the anticonvulsant to control the woman’s epilepsy, the record shows.

The complaint accused the drugmaker of strict product liability, negligence, constructive fraud, misrepresentation, breach of warranty, gross negligence and malice, loss of consortium, and other claims.

The court docket shows that on Aug. 27 of this year, Philadelphia Common Pleas Court Judge Arnold New granted in part, and denied in part a motion for summary judgment that had been filed by defense attorneys.

The jurist granted summary judgment on Janssen’s strict liability-design defect, negligent design, gross negligence, and breach of express warranty claims, as well as the claim for punitive damages.

New denied the defense summary judgment on all other claims.

The plaintiff voluntarily declined to proceed with her loss of consortium and constructive fraud claims, the record shows.

The trial judge overseeing the case was Philadelphia Common Pleas Court Judge George Overton.

Powell and co-plaintiff Michael Gurley were represented by Philadelphia attorney Rosemary Pinto of Feldman & Pinto.

The verdict was recorded on Nov. 18.

On Nov. 29, defense attorneys representing Janssen Pharmaceuticals, who included Kenneth A. Murphy, Melissa A. Graff and Molly E. Flynn, of the Philadelphia firm Drinker Biddle & Reath, filed a lengthy motion for post-trial relief that sought, among other things, judgment notwithstanding the verdict, or, in the alternative, a new trial.

The defendant specifically sought a new trial on the plaintiff’s negligent failure-to-warn claim.

In her complaint, Powell, the plaintiff, alleged that Janssen failed to adequately warn of the risk of birth defects associated with Topamax during pregnancy.

The record shows that in late October, the plaintiffs withdrew all claims except the negligent failure-to-warn count.

This was the only claim that actually made it to trial, which commenced on Oct. 29.

At the conclusion of the case, jurors determined that Janssen was negligent for failing to warn Powell’s doctor of the extent of the risk of birth defects associated with the use of Topamax during pregnancy and that this negligence was the proximate cause in bringing about the child’s harm.

One defense argument was that Janssen was entitled to judgment notwithstanding the verdict because the plaintiff failed to present testimony from the prescribing physician and failed to present any medical expert testimony on the adequacy of the warnings provided to healthcare prescribers.

At trial, Powell testified that she consumed medication that had been prescribed to her mother, Sandra Powell, according to the defendant’s post-trial motion.

At the same time, the plaintiffs failed to provide any evidence from Rick Keizer, the doctor who prescribed the medication.

“Thus, Janssen is entitled to judgment notwithstanding the verdict because there is no evidence that, had Janssen provided different information to Dr. Keizer regarding the risk of oral clefts, Dr. Keizer would have altered his prescribing habits and Brayden Gurley’s injuries would have been avoided,” the defense attorneys wrote.

The lawyers, citing case law, wrote that if a plaintiff is unable to generate evidence that the prescribing doctor would have changed the prescribing decision, then a failure-to-warn claim fails.

The attorneys also argued that the claims were barred by Pennsylvania’s two-year statute of limitations.

Janssen also asserted that it was entitled to a new trial because the court “improperly” excluded evidence that would have shown Powell knew, or should have known, that she had a potential claim back in 2008.

During trial, however, the judge sustained Powell’s objections to the defense’s use of medical records that would have refuted Powell’s assertion that she was unaware of the cause of the child’s cleft lip until early 2011, the record shows.

Lastly, Janssen had agued that the court should grant a remittitur of the damages award, arguing that the damages were “excessive and exorbitant.”

Janssen argued that the jury’s award of $10,620,000 for non-economic damages was actually punitive in nature.

“Most shocking is the fact that the amount awarded for non-economic losses is over 30 times more than the jury’s award for future medical costs,” the post-trial motion stated.

The jury awarded the plaintiff $335,000 for future healthcare costs.

The defense also argued that Brayden Gurley is not employed, and that his injury does not prevent him from attending school and developing normal relationships with his peers.

The defendant’s post-trial arguments didn’t seem to sway Overton, the judge, any; the docket sheet shows that he denied Janssen’s motion for post-trial relief on Dec. 3.

The decision came in a one-page order without an accompanying opinion.