Report: Pa. lawyers argue Risperdal case should've gone to jury

By Jessica M. Karmasek | May 17, 2012


PHILADELPHIA (Legal Newsline) - Lawyers for the state of Pennsylvania argued Wednesday that a case over $150 million in payments for the drug Risperdal should have gone to a jury.

According to The Legal Intelligencer, the state's attorney, Robert W. Cowan of Houston law firm Bailey Perrin Bailey, argued the Philadelphia Court of Common Pleas was wrong to dismiss before trial Pennsylvania's Medicaid fraud claim.

A panel of the Commonwealth Court heard oral arguments from both sides Wednesday over whether the state did, or if it was required to, prove that it relied on Janssen's marketing in deciding to pay for the antipsychotic drug.

Janssen, which now operates as Ortho-McNeil-Janssen Pharmaceuticals Inc., is a division of Johnson & Johnson.

Two of the panel's judges expressed skepticism over whether Janssen defrauded the state, suggesting that state officials should have done a better job researching the cost of the drug before paying out, the Intelligencer reported.

The state is suing for damages of $3.50 for each Risperdal pill that was reimbursed by Medicaid between 1994 and 2008. That is the cost difference between Risperdal and other similar drugs.

But Pennsylvania isn't the only state to sue over the marketing of the drug.

In April, an Arkansas jury found that Janssen had minimized risks associated with the drug in a letter sent in 2003 to thousands of doctors in the state.

Assessing a $5,000 fine for each Risperdal prescription added up to a $1.1 billion verdict by Pulaski County Circuit Judge Tim Fox.

The case was brought by Attorney General Dustin McDaniel through private lawyers he hired.

Janssen, which expressed its disappointment with the judge's decision on penalties, said it would ask for a new trial before an appeal.

It contends it "acted responsibly and fully complied with all laws and regulations regarding its antipsychotic prescription medication Risperdal."

Risperdal verdicts in other states have recently reached nine figures, but Arkansas' is the first to go to 10.

In Louisiana, the company was ordered in October 2010 to pay $258 million, while a South Carolina judge has ordered the company pay $327 million. Also, the company reached a $158 million settlement with Texas this year.

Massachusetts Attorney General Martha Coakley filed her own lawsuit in August.

However, the company had better luck in West Virginia.

West Virginia Attorney General Darrell McGraw had a $4.5 million fine wiped away by the state Supreme Court in 2010.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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