In a victory for a beleaguered company that is beset by legal issues, a trial judge in Philadelphia has dramatically slashed an $8 billion jury verdict against Johnson & Johnson for a scheme in which the company allegedly marketed a drug for off-label uses but hid the side effects of the medication. Johnson & Johnson allegedly knew that Risperdal could cause gynecomastia but still encouraged doctors to prescribe it to treat autism. Now, the company will face additional lawsuits related to its conduct in marketing Risperdal for off-label uses.
Risperdal Was Prescribed for Off-Label Uses
Johnson & Johnson has faced legal action brought by private plaintiffs as well as regulatory action related to its conduct surrounding Risperdal. The drug was approved by the FDA to treat schizophrenia and bipolar mania. However, like many drugs, Risperdal was prescribed by doctors for off-label uses for which it was not approved by the FDA.
Here, Risperdal was given to treat symptoms of autism and behavioral problems and irritability tied to the condition. However, the use of Risperdal caused boys to develop gynecomastia. This is when boys develop breast tissue that does not go away, even with weight loss. In many cases, the treatment for this condition is a surgical procedure to remove the breast tissue.
Johnson & Johnson Allegedly Knew of the Link Between Risperdal and Gynecomastia
The problem, according to plaintiffs and regulators, is that Johnson & Johnson knew of the link between Risperdal and gynecomastia. Instead of telling doctors about it so that they could have an informed conversation with their patients, the company allegedly hid this side effect and took steps to conceal it.
The company allegedly took steps to illegally market the drug while downplaying its complications. Government agencies took legal action against Johnson & Johnson. As a result, the company was forced to pay $2.2 million to settle the claims of illegal marketing. Like many civil penalties, these fines were soon followed by civil lawsuits.
In 2019, a Philadelphia jury hit Johnson & Johnson with an $8 billion verdict in a lawsuit brought by a plaintiff who was given Risperdal as a nine-year-old to treat his autism. He grew breast tissue and was forced to have surgery to remove that tissue. At the time, experts pointed out that the jury verdict was likely to be reduced.
In response to the jaw-dropping verdict, Johnson & Johnson had argued that the overall verdict was disproportionate to the actual damages that the jury had awarded to the plaintiff. In this case, the jury awarded $680,000 in actual compensatory damages to the plaintiff. The company had argued that the punitive damages were excessive.
Here, the judge did not issue a written decision which explained the basis for the reduction of the verdict. The court records show that the verdict has been slashed but they do not detail the reason why. One would have to suspect that the judge found that the punitive damages were disproportionate to the overall award. Nonetheless, the reason for this drastic reduction in the jury verdict remains unknown. Johnson & Johnson had previously filed a motion for the recusal of the trial judge claiming that he showed “partisan glee” and high-fived the jury after it had issued the large verdict. The judge did not recuse himself but still reduced the jury verdict.
Juries Do Not Have the Last Word for Verdicts
In many cases, juries do not have the final word on damages in a product liability case. Juries will try to send a message to the defendant through punitive damages, and the numbers can be stratospheric. However, their work is subject to review on multiple levels. The first level of review is the trial judge, who has the ability to knock the verdict down on their own. Then, either party can appeal the decision of the trial judge to an appeals court. Even if the trial judge does not touch the damages award, the defendant can appeal the verdict.
Most times, astronomic jury verdicts do not survive the entire litigation process. There are sometimes concerns that punitive damages may be unconstitutionally high. When you see a multi-billion dollar verdict, most times it will end up getting reduced at some point before it is paid. There are Supreme Court cases that hold that punitive damages verdicts that are grossly disproportionate to the compensatory damages raise constitutional concerns.
Both sides have pledged to appeal the judge’s verdict. The plaintiff’s attorney has said that the judge had no basis to throw out the bulk of the punitive damages. He believes that the punitive damages properly punished the company for its conduct in this case as this type of damage should. With the damages reduced, he believes that the company is getting away with the worst of its misconduct in a labeling and marketing scheme.
Johnson & Johnson Is Not Done with its Risperdal Legal Issues
Even though the company seems to have dodged a major bullet with the reduction of the sizable verdict, it still intends to appeal the overall verdict. The company faces other lawsuits pertaining to Risperdal in the future and needs to obtain a verdict in its favor to send a message to other potential plaintiffs. The company’s attorneys believe that the trial judge excluded evidence that would have led to a verdict in its favor. There are over 13,000 lawsuits pending against the company, and Johnson & Johnson does not want to be on record as having lost a case so the stakes are still high notwithstanding the reduction of punitive damages.
For Johnson & Johnson, the Risperdal lawsuit is just one of many different major legal hurdles the company currently faces. Johnson & Johnson is also facing large lawsuits relating to its talc powder and hernia mesh products that have been alleged to harm consumers. The company was hit with a jury verdict of approximately $4.6 billion in a lawsuit brought by women who claimed to develop ovarian cancer after using talc powder alleged to have been tainted by asbestos. The reduction in the Risperdal verdict is good news for a company that is under a considerable amount of legal pressure. However, Johnson & Johnson is far from out of the woods with regard to its Risperdal issues.