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A Pennsylvania court has cleared the way for thousands of plaintiffs to seek punitive damages in lawsuits filed over male breast growth caused by side effects of Risperdal, overturning a previous decision by the state court judge, which may expose Johnson & Johnson to staggering liability at trial.
On Monday, a three-judge panel in Pennsylvania Superior Court determined that plaintiffs’ home state laws should apply to Risperdal lawsuits filed in a Pennsyvania mass tort litigation, which currently includes more than 6,000 complaints.
Each of the cases involve similar allegations that Johnson & Johnson subsidiaries failed to adequately warn consumers and the medical community about the risk that their popular antipsychotic medication may cause boys and young men to develop a condition known as gynecomastia, which often results in the need for breast removal surgery.
The ruling overturns a decision made in October 2015 by Philadelphia Judge Arnold New, who is the coordinating judge for the Complex Litigation Center. Judge New decided New Jersey product liability law should be applied to the cases filed in Pennsylvania, since that is where the drug was developed and marketed.
The appelate decision indicates that the court should have also considered whether to apply the state law of the plaintiffs, which means that some cases that have already been decided may be reconsidered, because plaintiffs were barred before from seeking punitive damages, which are designed to punish defendants for reckless disregard for the health and safety of consumers, and often result in substantially higher jury awards than any compensatory damage portion of the claim.
The ruling could also put increased pressure on Johnson & Johnson, to consider Risperdal settlements to avoid the need for thousands of individual trials, which could result hundreds of millions in liability.
Lawsuits over the Risperdal gynecomastia problems have been pending for several years, but as more families learn that the drug may have caused breast growth side effects experienced by boys nationwide, additional cases continue to be filed.
While there are also cases pending in various other state courts, most of the litigation is centralized in Philadelphia, where the state court litigation is being handled as part of a mass tort proceeding, since each claim raises similar questions or fact and law.
A series of representative cases have been set for early trial dates, known as “bellwether” cases, since they are designed to help the parties gauge how juries may respond to certain evidence and testimony that may be repeated throughout the litigation. Other than this one defense win for Johnson & Johnson, several different juries have returned massive verdicts for boys and young men left with breast growth, indicating that the drug maker withheld information from families and the medical community.
In July 2016, the family of a five year old Tennessee boy was awarded $70 million in compensatory damages from Risperdal, with other prior verdicts including $500,000 in December 2015, $1.75 million in November 2015 and $2.5 million in February 2015. Two other cases, one in late 2016 and one in April of this year, were dismissed. A recently overturned defense verdict was the only case where Johnson & Johnson was successful in defending a claim before before a jury.
Each of the early bellwether cases could go back for additional consideration on punitive claims following this latest ruling.
While the drug maker has reached some individual agreements to resolve Risperdal cases, often on the even of bellwether trials, there have not been any global deals that would resolve large numbers of cases, or provide compensation for individuals who have experienced male breast growth after using Risperdal.
As families and former users of the medication continue to learn about the potential link between Risperdal and breast growth they may have experienced since using the medication, it is likely the size of the litigation will continue to grow over the coming months and years.