HONOLULU (Legal Newsline) - The Hawaii Supreme Court has struck down a massive penalty imposed on the makers of the anti-platelet drug Plavix in a consumer protection lawsuit brought by the state Attorney General's Office.
Former AG David Louie filed the suit in March 2014, alleging unfair and deceptive acts in the marketing, promotion, labeling and sale of Plavix by Bristol-Myers Squibb and Sanofi-Aventis.
The suit found favor with jurors, and an $834 million penalty was ordered. Though the state Supreme Court's March 15 ruling cancels that, all might not be lost for current AG Anne Lopez.
The trial court was wrong to grant summary judgment on the materiality issue - did the label on Plavix matter to customers, the Supreme Court found. The case goes back to the trial court for a new trial on deceptive acts or practices claims.
But the court's holding the companies committed unfair acts under the Unfair and Deceptive Acts and Practices law will stand.
"We find that the court's heavy reliance on its materiality ruling to reach its penalties determination makes it necessary to remand the entire question of damages," the Supreme Court held.
"The court reasoned that the $834 million penalty was justified because Defendants had substantially injured the public."
The trial court assessed per-prescription penalties to arrive at the huge figure. State attorneys general using that type of strategy are part of a "dangerous trend," Johnson & Johnson has told the U.S. Supreme Court.
J&J is fighting a $344 million judgment in California after $2,500 penalties were multiplied. The California judge counted every printed piece of information the state estimated to have reached California regarding products made by its subsidiary Ethicon.
J&J said UDAP laws “transform what were previously ordinary product liability claims into massive claims that require no such individualized proof of injury or causation.”
Hawaii's Plavix lawsuit said BMS and Sanofi-Aventis failed to warn users that it had a diminished or no effect on approximately 30% of the population because they metabolize the drug poorly, due to genetic traits or other medications.
The suit seeks $10,000 per alleged violation.