Judge says Pa. lacks evidence in Risperdal case

By John O'Brien | Jun 21, 2010


PHILADELPHIA (Legal Newsline) - A Pennsylvania judge has dismissed the state's lawsuit against Janssen Pharmaceutica, which has also asked for the contingency fee agreement between the state and private lawyers to be ruled unfair.

Judge Frederica Massiah-Jackson tossed the suit June 14, agreeing with Janssen's argument that the state had not presented enough evidence to prove the company had improperly marketed the prescription antipsychotic Risperdal, according to a Bloomberg News report.

The lawsuit was filed by Gov. Ed Rendell's office after state Attorney General Tom Corbett turned it down. Houston firm Bailey Perrin Bailey had presented its idea for the case to Corbett in March 2005.

"The Attorney General was not impressed with the evidence presented by Bailey at the time and asked them to come back with more evidence," Kevin Harley, Corbett's press secretary, said last year.

The Bloomberg report adds that Bailey Perrin Bailey plans to appeal.

Janssen currently has an appeal pending in the state Supreme Court regarding the case. The company is challenging the contingency fee on which BPB is working.

The case has made national news, as some have alleged it is an example of "pay-to-play." BPB donated $91,000 to Rendell's campaign in 2006 -- $75,000 in direct contributions and $16,000 in air travel.

BPB also gave $25,000 to the Democratic Governors Association.

Janssen is not challenging the campaign support but has made a note of it in its filings.

The case involves alleged off-label marketing of the prescription drug Risperdal. The Court was scheduled to rule on:

-Whether Janssen lacks standing to seek the disqualification of BPB on the basis of alleged violations of constitutional law;

-Whether Rendell's office is allowed to enter into a contingent fee agreement with BPB;

-Whether BPB should be disqualified because the General Assembly did not authorize the contingent fee contract; and

-Whether BPB should be disqualified because it has a direct financial interest in the outcome of the litigation.

Other states have filed similar lawsuits against Janssen, and West Virginia's was successful. It resulted in a nearly $4.5 million civil penalty.

The West Virginia Supreme Court has agreed to hear Janssen's appeal.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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