PHILADELPHIA – Johnson & Johnson and its subsidiary Janssen Pharmaceuticals have called a Philadelphia jury’s gigantic verdict of $8 billion in punitive damages against it for alleged malice connected to the marketing of anti-psychotic drug Risperdal “grossly disproportionate” and “a violation of due process” and are seeking to immediately overturn it.
“This award is grossly disproportionate with the initial compensatory award in this case, and the company is confident it will be overturned,” the company said in a statement Wednesday.
“This award for a single plaintiff stands in stark contrast with the initial $680,000 compensatory award and is a clear violation of due process. United States Supreme Court precedent dictates that punitive damages awards that are a double-digit multiplier of the compensatory award should be set aside.”
James Beck, Senior Life Sciences Policy Analyst at Reed Smith in Philadelphia, said the verdict was “another black eye for the reputation of the Philadelphia judicial system.”
“A verdict of this size is highly unlikely to survive intact. A number like that raises a strong suspicion that the verdict was infected by juror passion and prejudice,” Beck stated.
Beck added that U.S. Supreme Court precedent holds that, where the compensatory verdict is “substantial,” ratios for punitive damages compared to compensatory damages above 1:1 may be considered unconstitutional.
“Even if not ‘substantial,' ratios above 3:1 are constitutionally suspect, and when the ratio of punitive damages to compensatory damages exceeds 10:1, many, probably most, verdicts have been overturned as unconstitutionally excessive. California – not a pro-defendant state – considers verdicts exceeding 10:1 per se unconstitutional,” Beck said.
“As an injury, gynecomastia does not compare to what has previously supported large punitive damages awards. Those have mostly been death cases, often in gruesome circumstances (cancer, burns), or major permanent impairment cases such as quadriplegia.”
Beck confirmed that U.S. Supreme Court precedent would permit the setting aside of punitive damages that more than double the amount of compensatory damages.
According to the company, it was “precluded from presenting a meaningful defense due to the Court’s exclusion of key evidence” and as a result, the jury “did not hear evidence as to how the label for Risperdal clearly and appropriately outlined the risks associated with the medicine, or the benefits Risperdal provides to patients with serious mental illness.”
Johnson & Johnson further stated its view that plaintiff counsel “failed to present any evidence that the plaintiff was actually harmed by the alleged conduct.”
“This decision is inconsistent with multiple determinations outside of Philadelphia regarding the adequacy of the Risperdal labeling, the medicine’s efficacy, and findings in support of the company. We will be immediately moving to set aside this excessive and unfounded verdict,” the company said.
At two different points in the trial, both after opening statements and prior to closing arguments, John Winter, member of defense counsel for Johnson & Johnson, moved for a mistrial. Both motions were ultimately denied, and the denials may prove to be a linchpin of the company’s expected appeals.
In trial conclusion proceedings on Tuesday, Winter criticized a decision by Philadelphia County Court of Common Pleas Judge Kenneth Powell Jr. to exclude any mention or discussion of warning label information from the company’s closing arguments.
“We move for a mistrial. The Court is precluding us from talking about evidence entered over a period of weeks. This is highly prejudicial and unfair,” Winter said, before Powell denied the motion.
Meanwhile, plaintiff counsel members Tom Kline of Kline & Specter in Philadelphia and Jason Itkin of Arnold & Itkin in Houston also issued a joint statement on the verdict, which expressed the large award was the result of a wayward corporation that placed profits over patients.
“Johnson and Johnson is a company which has lost its way. This jury, as have other juries in other litigations, once again imposed punitive damages on a corporation that valued profits over safety and profits over patients. Johnson & Johnson and Janssen chose billions over children,” said Kline and Itkin.
Members of both plaintiff and defense counsel did not respond to inquiries for further comment from the Pennsylvania Record.
Philadelphia County Court of Common Pleas case 130401990
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com