That being said, this is exactly what the family of a 15-year-old boy whose family has sued Johnson & Johnson because the boy allegedly grew breasts after taking Risperdal, an antipsychotic drug made by J&J.
But, the family’s case has recently experienced a devastating hurdle, as a Philadelphia judge has ruled that J&J’s chief executive officer Alex Gorsky cannot be called as a trial witness in the case, according to Bloomberg.
In a big victory for the health-care giant, Philadelphia Common Pleas Court Judge Arnold New agreed to the request by J&J defense lawyers to quash the subpoena from the boy’s attorneys.
Even though Gorsky once ran the unit responsible for making and selling Risperdal and has intimate knowledge of the company’s illegal marketing efforts targeting doctors who treat troubled youths, lawyers for the boy said in a filing in a Philadelphia state court.
J&J said in a motion that Gorsky was scheduled to be in Asia on business. But the company clearly wanted to avoid having its CEO called to the stand to answer – publicly, under oath – allegations of inappropriate marketing of the drug to children and harmful side effects.
This the second of a string of Risperdal trials in cases filed by Philadelphia lawyers Stephen Sheller and Brian McCormick in which they hoped to put Gorsky on the stand.
In the first one, a 21-year-old man who was prescribed Risperdal as a child had to have a double mastectomy in which tissue was suctioned out of his breasts. With a jury waiting on Sept. 10, J&J settled with the man rather than risk having the judge rule that Gorsky must testify.
The J&J defense team, led by Drinker Biddle lawyer Kenneth Murphy, argued that Gorsky should not have to testify because Gorsky was so high in the management hierarchy at Janssen Pharmaceutical, the J&J subsidiary that made Risperdal, that he would not have had firsthand knowledge of events.
But the plaintiffs’ lawyers submitted as evidence Gorsky’s resumé, according to which he knew enough to claim credit for increased sales of Risperdal. According to the transcript of the deposition, Gorsky said he signed off on a $500,000 payment to a doctor to start a program in 2002 at Massachusetts General Hospital with hopes of increasing the use of Risperdal in children.
“There is no question that Mr. Gorsky had significant, direct and important involvement in the conduct that gave rise to this litigation,” said the lawyers for the teen.
Gorsky oversaw a sales force that was trained to market the drug to pediatricians for uses in children that hadn’t been approved by regulators at the time, the teen’s lawyers said in the filing.
A 2001 J&J business plan stated that one of the company’s goals was to “grow awareness of Risperdal use in child/adolescent market via medical education,” the lawyers also said.
They added that an internal Janssen e-mail from February 2003 said “these issues (off-label prescriptions to children) leave Alex Gorsky awake at night.”
Since Gorsky was “in the middle” of the Risperdal marketing strategy, his testimony is crucial to making out a case over the drug’s illegal sales, the lawyers added.
Teresa Mueller, a J&J spokeswoman, said the company contends that Gorsky already has testified about his handling of Risperdal marketing strategies in connection with the teen’s case.
“Mr. Gorsky testified by deposition for seven hours in regard to this matter,” she said in a telephone interview.
The suit is just one of more than 400 against New Brunswick, New Jersey-based J&J and its Janssen unit alleging personal injuries caused by Risperdal.