Superior Court upholds $2.5 million Risperdal verdict, remands case for punitive damages arguments

By Nicholas Malfitano | Nov 1, 2018

HARRISBURG – The Superior Court of Pennsylvania has unanimously ruled that the first Risperdal case to be decided in the hands of a Philadelphia jury will have its $2.5 million verdict for the plaintiff stand.

In a 39-page ruling issued Wednesday and authored by Superior Court Judge Eugene B. Strassburger III and joined by colleague judges Victor P. Stabile and Correale F. Stevens, the Court affirmed a jury verdict for Risperdal case plaintiff Austin Pledger – an Alabama man who says he developed gynecomastia after being prescribed Risperdal – and remanded the case to the Philadelphia County Court of Common Pleas for additional proceedings on the issue of punitive damages.

Counsel for Pledger, Thomas L. Kline and Chip Becker of Kline & Specter, issued a statement on the ruling.

“We are pleased that the Superior Court has affirmed the jury verdict in favor of Austin Pledger, whose case was the first bellwether Risperdal trial. This is now the third plaintiffs’ verdict in which the sufficiency of the evidence has been affirmed by the Superior Court and the case remanded for punitive damages proceedings, and the second published opinion where the Court categorically rejects a Frye challenge to plaintiffs’ expert causation testimony. This litigation has unquestionably turned strongly in the plaintiffs’ favor with many additional listings ahead, including two trials devoted solely to punitive damages,” according to Kline and Becker.


Kline  

Janssen Pharmaceuticals spokesperson Kelsey Buckholtz expressed disappointment in the Superior Court’s ruling, on behalf of the company.

“We are disappointed in the court’s ruling and will consider our options going forward. Contrary to the impression plaintiffs’ attorneys have attempted to create over the course of this litigation, Risperdal (risperidone) is an important FDA-approved medicine that, when used as part of a comprehensive treatment plan, continues to help millions of patients with mental illnesses and neurodevelopmental conditions,” Buckholtz stated.

Pledger, 20, and his family accused Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson, in a 2012 lawsuit of breaching its duty by failing to warn for the risk of contracting gynecomastia after taking Risperdal.

Pledger had been prescribed the drug for autism-related behavioral issues, said it caused him to grow female breast tissue beginning at the age of 8 and that it permanently disfigured him.

In February 2015, a Philadelphia jury agreed, awarding Pledger $2.5 million in compensatory damages. Janssen appealed the result to the Superior Court, with one of its primary objections being a switch in medical experts during the trial by Pledger’s counsel.

Dr. David E. Goldstein, a physician from Missouri, had examined Pledger originally and filmed a deposition which was set to be introduced at the trial. However, Janssen objected on the basis that his observation of Pledger violated Alabama law, since Goldstein was not licensed to practice medicine in that state.

As a result, another physician, Dr. Mark Solomon, examined Pledger instead and later testified at the trial. This mid-trial switch in expert witnesses was approved by the trial court, and Janssen moved for a mistrial on those same grounds.

However, that move was denied by the trial court judge, ruling the pharmaceutical company waited until an opportune moment to raise the issue.

When Janssen argued the matter once again in the Superior Court, Strassburger and his colleagues concurred with their counterparts in the Philadelphia County Court of Common Pleas, labeling the witness switch “appropriate” under the circumstances.

“The new expert, Dr. Solomon, was familiar to Janssen. The Pledgers were willing to have Austin examined, a report prepared, and a deposition taken in an expeditious manner at no cost to Janssen. Based on the foregoing, we conclude there was no abuse of discretion or error of law that would entitle Janssen to a new trial on this basis,” Strassburger said.

The case now returns to the trial court in Philadelphia for further proceedings on the applicability of punitive damages.

Philadelphia County Court of Common Pleas case 120401997

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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