PHILADELPHIA – A Philadelphia judge has struck down an attempt to recuse him from future proceedings surrounding a staggering $8 billion punitive damages verdict at the end of a recent trial surrounding anti-psychotic drug Risperdal.
In mid-October, Johnson & Johnson lawyers filed motions to set the verdict aside and call for a retrial – in addition to calling for the presiding judge, Kenneth Powell Jr., to recuse himself from the case moving forward, alleging improper conduct like high-fives and pictures with jurors.
On Wednesday, Powell denied the motion. He also referred to the company counsel’s charges of improper conduct on his behalf as untrue and “fabricated," saying the attorneys who filed the motion were seeking to create a diversion in order to cover for their inadequate representation in the case.
In Murray v. Janssen Pharmaceuticals, involving Maryland plaintiff Nicholas Murray, a jury decided the case in Murray’s favor in November 2015 and awarded him $1.75 million. The $1.75 million jury verdict represented damages for “disfigurement and mental anguish,” though it was later cut down to $680,000.
In the second portion of the bifurcated trial, plaintiff counsel sought to prove that the companies knew and deliberately disregarded evidence that Risperdal could lead to gynecomastia in young males, and nonetheless promoted the drug off-label and released the drug into the open market for prescription and use by patients without disclosing the side effects.
Murray was prescribed Risperdal at the age of nine in 2003, for off-label treatment of symptoms associated with his Asperger’s Syndrome. Like other plaintiffs who stepped forward, Murray also developed gynecomastia.
At the end of a near four week-long trial, a 12-person jury found Johnson & Johnson and its subsidiary Janssen Pharmaceuticals liable for allegedly knowing and consciously disregarding the potential of the drug to cause gynecomastia to patients like plaintiff Murray, and rendered a gigantic verdict of $8 billion.
Philadelphia has a history of high-dollar verdicts that Johnson & Johnson was trying to avoid while it also litigates opioid, talcum powder and other mass tort cases elsewhere. The city’s Complex Litigation Center is home to thousands of similar claims from out-of-state plaintiffs.
Plaintiff counsel members Tom Kline of Kline & Specter in Philadelphia and Jason Itkin of Arnold & Itkin in Houston initially 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.
The company countered that the verdict award was unlawful and disproportionate.
“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. It added the award was “a clear violation of due process” and a defiance of United States Supreme Court precedent.
On Oct. 17, the company, through its counsel David F. Abernethy of Drinker Biddle & Reath, filed a pair of post-trial motions: The first of which called for the nullification or “severe” remittal of the $8 billion jury award, or a retrial.
“There is no possible legal or factual justification for this verdict, it must be set aside in every respect. Based on the impermissible case tried and presented to the jury, defendants are entitled to post-trial relief in every sense of the phrase. Immediate relief is mandated to rectify what currently stands as a mockery of justice,” an excerpt from the 138-page motion stated.
Among numerous objections, the company argued that the Court unlawfully excluded various pieces of key evidence, in addition to allowing plaintiff counsel to reference the jury’s need to consider the “children of the world” when making its decision, in their closing statement.
Janssen Pharmaceuticals issued a statement in regards to the post-trial motions.
“We filed a motion in the Murray case to set aside the factually and legally baseless verdict that resulted from improper restrictions on the evidence and an incorrect application of the law,” the company said.
The other post-trial motion called for Powell’s recusal, alleging his actions after the handing down of the verdict showed a bias towards the plaintiff’s case.
“Congratulating the jury and giving them certificates to frame was appropriate to communicate to the jury that the Court appreciated their service. But when the judge gave some of the jurors high-fives in the jury box, and posed with them for pictures taken by plaintiff’s counsel, the judge communicated much more,” according to the recusal motion.
“To a defendant who had sat through unbalanced ruling after unbalanced ruling–as documented in the post-trial motion filed contemporaneously herewith–the message was clear: The jury had received and acted on the pro-plaintiff message that the judge had sent.”
Powell acknowledged presenting the jurors with certificates marking their service and taking a group photo with the jury, but denied ever high-fiving them.
Plaintiff counsel also strongly disagreed with the company’s version of events.
“This motion is a continuation of Johnson & Johnson’s calculated broadside on the Pennsylvania judiciary, which has spawned vituperative allegations against a sitting judges,” Kline said, in part.
“There was no ‘high-five.’ Judge Powell shook hands of jurors and thanked them for their service and obliged them with a photo, which was later forwarded to the court officer. The entire episode was an example of judicial decency and appreciation expressed by a trial judge to citizens for one month of jury service.”
Philadelphia County Court of Common Pleas case 130401990
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com