PHILADELPHIA – The first Risperdal lawsuit to see the inside of a Philadelphia courtroom since a landmark $70 million plaintiff verdict in July was recently dismissed just 11 days into trial proceedings.
On Dec. 13, Philadelphia County Court of Common Pleas Judge Sean F. Kennedy issued a bench ruling dismissing Texas man Tommy Moroni’s case against Janssen Pharmaceuticals, the manufacturer of Risperdal.
It was the sixth case to proceed against Janssen in the Philadelphia court’s mass tort program involving Risperdal.
According to court records, Kennedy made the decision to dismiss the case due to his belief that plaintiff expert witness Dr. Mark P. Solomon provided insufficient testimony in arguing that Risperdal caused Moroni’s injuries of gynecomastia – the growth of female breast tissue in males.
In filing a motion for compulsory nonsuit, Janssen’s counsel, David F. Abernethy of Drinker Biddle & Reath in Philadelphia, argued Solomon’s testimony showed he did not prove “general causation” and based his opinion of Moroni developing gynecomastia as a result of using Risperdal, exclusively through examining a photograph of him.
Kennedy concurred with Abernethy’s rationale in his decision.
“It is my opinion that under Texas law, Dr. Solomon’s testimony is legally insufficient to prove causation in this case, and as such, I am granting defendant's motion for compulsory nonsuit,” Kennedy said.
Kennedy’s decision has been appealed to the Superior Court of Pennsylvania.
Moroni’s history using Risperdal began at age 7 and proceeded until he was 10 years old. He was originally prescribed the drug to treat symptoms of ADHD, obsessive-compulsive disorder, anxiety, depression and suicidal ideation.
In stark contrast, the jury for the previous case heard in Philadelphia, Andrew Yount v. Janssen Pharmaceuticals, decided to award Yount $70 million in damages for physical disfigurement and emotional distress related to his growing of breasts in connection with taking Risperdal, beginning at age 5.
The award was 28 times greater than the highest jury verdict previously decided against Janssen, a Johnson & Johnson subsidiary, in Philadelphia-based Risperdal litigation. That record-setting award is also now being appealed to the Superior Court for further proceedings.
The former highest verdict award was $2.5 million, to plaintiff Austin Pledger.
Pledger, an Alabama man who was prescribed Risperdal in 2002 as a teenager for treatment of mood swings related to his autism, developed size 46 DD breasts, allegedly as a result of taking the drug.
Like Yount, Pledger asserted Janssen did not disclose or properly warn of such side effects before he was prescribed Risperdal. A Philadelphia jury awarded Pledger $2.5 million in February of last year.
Another trial, involving Maryland plaintiff Nicholas Murray, was decided in Murray’s favor for $1.75 million. Yet another case, with Wisconsin plaintiff Timothy Stange, resulted in a $500,000 award for Stange.
So far, only one additional case, featuring Pennsylvania plaintiff William Cirba, has ended with a ruling in Janssen’s favor.
Janssen spokesperson and communication manager Jessica Castles Smith commented on Kennedy’s ruling to dismiss Moroni’s case.
“We are pleased that the court granted our motion and we will continue to defend this litigation and try cases where appropriate,” Smith said in a statement. “We sympathize with individuals suffering from serious mental conditions, which can have a significant negative impact on a person’s life and on the health and stability of families. It’s important to point out that Risperdal when used as part of a comprehensive treatment plan, continues to help millions of patients with mental illnesses and neurodevelopmental conditions.”
Plaintiff attorney Jason Itkin, of Arnold & Itkin in Houston, Texas, expressed surprise and disappointment with Kennedy’s decision.
“The Court’s ruling was totally unexpected in a case which had more than sufficient expert support under the governing law,” Itkin told The Pennsylvania Record.
“The ruling came after the second day of testimony in the defense case, where, on cross-examination, very damaging testimony as to the conduct of now Johnson & Johnson President Alex Gorsky was for the first time made public in front of a jury,” Itkin added.
Itkin referred to his questioning of Janssen’s Dr. Gahan Pandina, regarding Gorsky’s approval of a $500,000 donation for the creation of a research facility at Massachusetts General Hospital in Boston, dedicated to studying Risperdal use in children and teens.
This donation allegedly came at a time before the drug received Food & Drug Administration approval for that demographic, a claim Janssen was prepared to rebut.
Itkin further expressed confidence Kennedy’s “erroneous” ruling would be reversed and his client and plaintiff, Moroni, will have his testimony heard by a jury on another day.
According to current statistics from the Philadelphia County Court of Common Pleas and its Complex Litigation Center, 2,100 cases have been filed in Risperdal litigation in that particular court system. The cases generally allege Risperdal use caused boys and young men to develop gynecomastia.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com