Jessica M. Karmasek Jun. 20, 2013, 5:45pm

LITTLE ROCK (Legal Newsline) -- Arkansas Attorney General Dustin McDaniel, along with 35 state attorneys general and 65 members of the state's General Assembly, is asking the Arkansas Supreme Court to uphold a $1.2 billion judgment against Johnson & Johnson and Ortho-McNeil-Janssen Pharmaceuticals Inc.

Last April, an Arkansas jury found that Janssen Pharmaceuticals, which now operates as Ortho-McNeil-Janssen Pharmaceuticals Inc. and is a division of Johnson & Johnson, had minimized risks associated with Risperdal in a letter sent in 2003 to thousands of doctors in the state.

Risperdal, an atypical antipsychotic medication, is typically used to treat schizophrenia, schizoaffective disorder, the mixed and manic states associated with bipolar disorder, and irritability in people with autism.

Assessing a $5,000 fine for each Risperdal prescription added up to a $1.2 billion verdict by Pulaski County Circuit Judge Tim Fox.

The attorneys general and state legislators, in separate requests, asked the state's high court Tuesday for permission to submit amicus briefs, concurrently with McDaniel's filing of his brief in response to Janssen's appeal.

The AARP, the group Public Citizen and former FDA Commissioner Dr. Donald Kennedy also submitted briefs for consideration by the court.

McDaniel, who hired private lawyers to handle the case, maintains that the April 2012 verdict was consistent with Arkansas law; and the $1.2 billion in penalties assessed by Fox were proper, based on the company's serial violations of state law.

"This company lied to our medical providers and put profits ahead of people," McDaniel said in a statement Tuesday.

"As state attorney general, it is my responsibility to prevent actions like those, which defrauded our Medicaid program and jeopardized the health of our elderly and our children."

McDaniel said his fellow attorneys general took the "rare step" of seeking to be heard on the issue because of the "significance" of the case.

"This extraordinary coalition of AGs, lawmakers and consumer-advocacy groups has come together to support the important policy behind this case," he said. "To deter this type of fraudulent, harmful behavior, states must have the ability to pursue penalties against the wrongdoers."

Though the pharmaceutical company argues that the penalty is too excessive, McDaniel's and the supporting briefs contend that the $1.2 billion "clearly" falls within the range prescribed by state statute.

In fact, Fox assessed penalties per violation on the lower end of that range, the attorney general contends.

The hefty fine is merely the result of the serial violations of the law over the course of a number of years, McDaniel says.

In their briefs, the state and amici also argue that the state's claims are not pre-empted by federal law and that Janssen's marketing tactics are not protected under the First Amendment.

The briefs were filed by state Sen. Robert Thompson of Paragould for the members of the General Assembly; Allen Gordon, former state senator and senior assistant attorney general, for the states' attorneys general; former Arkansas Supreme Court Justice Annabelle Imber Tuck and attorney John Burnett for Public Citizen; Little Rock attorney Neil Chamberlin for AARP; and former state Department of Human Services Chief Counsel Charles Hicks of Little Rock for Kennedy.

From Legal Newsline: Reach Jessica Karmasek by email at

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