WASHINGTON – The U.S. Supreme Court has declined to review a $70 million compensatory damages award given to a Tennessee plaintiff for failure to warn of side effects tied to the anti-psychotic drug Risperdal, while another legal fight on the subject of punitive damages against Johnson & Johnson looms in the case.
On May 17, the Court rejected Johnson & Johnson’s appeal of a November 2019 Superior Court of Pennsylvania ruling – one which upheld a 2016 decision and $70 million verdict from the Philadelphia County Court of Common Pleas, in favor of plaintiff Andrew Yount.
Yount sued Johnson & Johnson and its subsidiary Janssen Pharmaceuticals after taking Risperdal beginning at the age of 5 and subsequently contracting gynecomastia, a growth of breast tissue in males due to hormonal imbalance, before winning the multi-million-dollar jury verdict award.
The Philadelphia jury found in 2016 that the pharmaceutical giant failed to warn Yount’s doctors about the risk of gynecomastia, and that it intentionally falsified, destroyed or concealed evidence in the case.
At the time of the original trial court decision, Andrew’s father Terry Yount said, “We are glad that Andrew’s suffering now stands for something. We hope this verdict gives hope to the thousands of other boys who were disfigured by Risperdal that they will get justice too. We’re proud that a family from a little town in Tennessee was able to stand up against one of the world’s largest pharmaceutical companies and hold them accountable for the harm they have caused.”
Johnson & Johnson immediately appealed the trial court decision to the Superior Court. However, the appellate court found three years later that the $70 million award, the largest compensatory damages award in a Risperdal case, was consistent with the evidence presented at trial.
“We discern no reversible error with the jury’s award of damages, as we do not view it as inconsistent with the evidence. A.Y. was just 4 ½ years old when first prescribed Risperdal, and he has never since known life without gynecomastia. At 16 years of age when the jury considered its award, A.Y. was living with severe and permanent disfigurement,” Superior Court Judge Correale F. Stevens said.
“The jurors were free to call upon their personal experiences and sensibilities to assess such intangible harms, and their valuation could reflect the length of time A.Y. would reasonably be expected to live with this disfiguring, embarrassing condition. Under such facts, the jury exercised sound discretion. Accordingly, we will not disturb the damages award.”
At that time, the Superior Court pointed to its rulings in other Risperdal cases, such as Stange v. Janssen Pharmaceuticals and Murray v. Janssen Pharmaceuticals, which opened the door for plaintiffs in those actions to apply the law of their home states and pursue punitive damages against Johnson & Johnson and Janssen.
Previously, New Jersey law had been applied to prohibit the seeking of punitive damages in Risperdal litigation. In the action involving plaintiff Nicholas Murray, the company was hit with an $8 billion punitive damages verdict in October 2019, which was later reduced to $6.8 million and remains under appeal.
A member of counsel for the Yount family, Chip Becker of Kline & Specter in Philadelphia, issued a statement on the Supreme Court’s decision.
“The plaintiffs’ trial and appellate team is pleased that compensatory damages is decided with finality so that Tom Kline and Jason Itkin can begin their work on the punitive damages trial to hold Janssen fully accountable in this litigation,” Becker said.
Johnson & Johnson also offered a statement on the Supreme Court’s decision not to review the case, expressing its view that questions in the case remain unanswered.
“The denial of the petition leaves unresolved an important legal question on federal pre-emption and we will continue to defend against the remaining Risperdal litigation,” according to the company.
The American Tort Reform Association criticized the Supreme Court’s denial, claiming the ruling would harm business and medical innovation.
“We are disappointed in the Court’s refusal to review Janssen Pharmaceuticals v. A.Y. The Supreme Court had an opportunity to address inconsistency caused by rogue state courts and failed to do so. This failure creates a system in which regulated industries are ‘damned if you do, damned if you don’t’ as state courts are permitted to penalize defendants for following federal law,” the organization said in a statement.
“Creating this level of legal inconsistency and unpredictable liability will impair innovation and investment in the development of new treatments. It exposes businesses to 50 different state regulatory and liability structures, making it next to impossible to plan financially when faced with unpredictable legal environments that could result in billions of dollars in legal fees.”
According to current statistics from the Philadelphia County Court of Common Pleas and its Complex Litigation Center, just over 7,600 cases have been filed in Risperdal litigation in that particular court system, many from out-of-state plaintiffs.
Supreme Court of the United States case 20-1069
Superior Court of Pennsylvania case 3058 EDA 2016
Philadelphia County Court of Common Pleas case 130402094
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com