Philly court denies Johnson & Johnson's motion for interlocutory appeal in Risperdal punitive damages case

By Nicholas Malfitano | Nov 6, 2018

PHILADELPHIA – A Philadelphia judge has denied a motion from counsel for pharmaceutical giant Johnson & Johnson to seek immediate appeal in a Risperdal case in which the possibility of punitive damages being applied remains in play.

On Oct. 26, Philadelphia County Court of Common Pleas Judge Arnold L. New issued the denial towards Janssen Pharmaceuticals, the developer of Risperdal and a subsidiary of Johnson & Johnson, and its attempts to amend New’s ruling of Sept. 14.

On that day, New decided in a pair of separate orders that the pharmaceutical company would not be granted summary judgment, and that the plaintiffs in Risperdal litigations Stange v. Janssen Pharmaceuticals and Murray v. Janssen Pharmaceuticals will have the opportunity to apply the laws of their home states to try and obtain punitive damages.

Prior to Judge New’s September order, a similar ruling was made in the Superior Court in January. Before that, the pursuit and application of punitive damages in Risperdal cases was prohibited according to New Jersey state law – because Johnson & Johnson is headquartered there.

New had previously agreed with that rationale, before his original ruling to bar punitive damages was reversed by the Superior Court.

Lead plaintiff counsel in the Philadelphia-based Risperdal litigation, Tom Kline of Kline & Specter in Philadelphia, indicated New’s September order was a pivotal decision in the mass tort series.

“We believe this is a tipping point in this litigation. We have always steadfastly and wholeheartedly believed that this is a punitive damages case and this ruling by Judge New is a welcome pathway forward to the plaintiffs obtaining a full measure of justice,” Kline said.

In September, Janssen spokesperson Kelsey Buckholtz expressed disappointment in Judge New’s order, on behalf of the pharmaceutical company.

“We are disappointed in the Court’s ruling and are continuing to review our options going forward. Risperdal (risperidone) has helped and is still helping millions of patients with debilitating mental illnesses and neurodevelopmental conditions as part of a comprehensive treatment plan,” Buckholtz stated.

The key development on the issue of punitive damages started with Johnson & Johnson’s appeal to the Superior Court of the verdict in the Stange v. Janssen Pharmaceuticals case, a lawsuit in which Wisconsin plaintiff Timothy Stange asserted an inadequate warning of developing gynecomastia from taking Risperdal.

Stange used the drug for three years during his childhood, for treatment of Tourette’s syndrome. At the conclusion of the trial in December 2015, a Philadelphia jury awarded Stange $500,000, and the January Superior Court ruling upheld his arguments that an inadequate warning of the gynecomastia risks directly caused his injuries. In Stange’s new trial, he can attempt to apply Wisconsin law to attempt to obtain punitive damages from Johnson & Johnson.

Plaintiff counsel aims to fight cap limits on punitive damages as part of the new trials.

On Oct. 12, David F. Abernethy of Drinker Biddle & Reath, counsel for the defendants, filed a motion to amend New’s September order, which had denied partial summary judgment, to allow for immediate and interlocutory appeal.

“First, the order involves the controlling question of whether under Pennsylvania choice-of-law principles, plaintiff’s claim for punitive damages is governed by the law of the place where the punitive conduct occurred or by the law of plaintiff’s home state. Second, there is substantial ground for difference of opinion concerning that question…third, an immediate appeal may materially advance the resolution of this litigation,” Abernethy’s motion read, in part.

In a response to the motion filed Oct. 22, plaintiff counsel Charles “Chip” Becker opposed Janssen’s arguments and its desire for an immediate appeal.

“A prompt appeal will not hasten the ultimate termination of the matter. It will only lead to a lengthy appellate process that will eventually vindicate the Court’s decision to apply Wisconsin law, to a claim involving injuries suffered by a Wisconsin resident in Wisconsin, caused partly by Janssen’s Wisconsin activities,” Becker said.

“The quickest way to resolve the case is to proceed to the spring 2019 trial that the Court has scheduled. That will bring this matter to a head and provide the best opportunity for prompt resolution of this case. If the trial leads to a verdict and judgment in plaintiff’s favor, Janssen can pursue its choice of law argument in the normal course of appellate process.”

The following day, Oct. 23, counsel for the defendants again asked for interlocutory appeal.

“Proceeding to trial on punitive damages now would expend enormous judicial and party resources that could be rendered useless by the rulings on appeal. Given that plaintiff’s counsel advised the Court at the last case management conference that these trials will run 2-3 weeks each, that is a considerable investment of this Court’s time that will be wasted,” Abernethy said.

However, New ruled Oct. 26 that the defendants’ motion was denied.

Currently, 6,740 lawsuits based in the Philadelphia County Court of Common Pleas and its Complex Litigation Center – most from out-of-state plaintiffs – allege Risperdal causes young males to contract gynecomastia, or the development of female breast tissue, and that Johnson & Johnson failed to adequately warn of that side effect from the drug.

In addition to more than 6,700 Risperdal cases, the CLC has several other mass tort programs including cases over asbestos and Xarelto, and the percentage of claims belonging to out-of-state plaintiffs has traditionally been in the high 80s.

In 2016, the percentage for pharmaceutical lawsuits dropped to 74 percent.

In 2017, CLC stats show that figure jumped to an unprecedented 94 percent. Earlier this year, it was reported that figure showed a slight decrease, to 84 percent.

Philadelphia County Court of Common Pleas cases 130401984

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

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