Philadelphia Judge Denies Request for Punitive Damages in Risperdal Litigation

Published on July 22, 2014 by Laurie Villanueva

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A Philadelphia judge overseeing Risperdal lawsuit claims of gynecomastia and other drug complications is standing firm in his decision to bar punitive damage awards from certain cases over the antipsychotic, according to court documents.

An Order on July 18th indicates that the judge will not reconsider a plaintiffs’ motion to allow for punitive damages, particularly in cases alleging Johnson & Johnson and Janssen’s off-label marketing of the antipsychotic. This rule is governed by the New Jersey Product Liability Act, which refuses these awards in cases involving a product that was approved by the U.S. Food and Drug Administration (FDA), unless there is evidence of fraud against the federal agency.

Janssen engaged in off-label marketing practices to promote Risperdal for pediatric uses before it received FDA-clearance to do so in 2006, plaintiffs assert.

“Even if the ingestion occurred after the 2006 approval, it does not follow that the bar on punitive damages applies,” plaintiffs said in their June motion. “There was still off-label marketing by Janssen during this period for uses that were not within the strict criteria of the label.”

Risperdal Claims Should Not All Follow N.J. Law, Plaintiffs Argue

In response to the Philadelphia court order, plaintiffs in cases alleging Risperdal gynecomastia and other complications argued that New Jersey rules should not govern all claims involving the antipsychotic. Instead, the decision to award punitive damages should be determined on a case-by-case basis, and should follow regulations instituted in the state in which patients were prescribed and took the medication.

“We respectfully do not believe New Jersey law applies to the issue of punitive damages, or that New Jersey law, if applied, in these individual cases prohibits punitive damages recovery given Janssen’s misconduct—including off-label marketing of a drug to children which caused them harm,” plaintiffs said.

The Philadelphia Court’s recent order files a similar one on May 2nd, at which time he said it was determined that New Jersey law should govern claims alleging off-label marketing of Risperdal from Johnson & Johnson and Janssen Pharmaceuticals. Janssen conducted most of its business in New Jersey, so that’s the rules that should govern the cases, the Philadelphia judge ruled.

As of July 2014, more than 500 lawsuits over Risperdal were pending in the Pennsylvania state court litigation after being filed by plaintiffs who allege similar injuries from the medication.

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