A recent ruling by a Pennsylvania appeals court could allow thousands of Risperdal gynecomastia plaintiffs to pursue punitive damages against Johnson & Johnson and its Janssen Pharmaceuticals subsidiary.
Plaintiff Timothy Strange was prescribed Risperdal in 2006, at the age of 12, to treat Tourette’s syndrome. He later filed a Risperdal lawsuit alleging that his use of the medication resulted in gynecomastia, a painful and disfiguring condition that causes men and boys to develop female-like breasts.
In 2015, a jury in the Philadelphia Court of Common Pleas awarded Strange more than $500,000 in compensatory damages, after finding that Johnson & Johnson and Janssen negligently failed to warn that Risperdal could cause excessive male breast development. However, Strange and other gynecomastia plaintiffs were barred from pursing punitive damages after the trial court ruled that New Jersey law should be applied to their cases, as the defendants were based in that state.
New Jersey law does not permit plaintiffs to pursue punitive damages in product liability cases that involve medications approved by the U.S. Food & Drug Administration.
Strange appealed the trial court’s decision, arguing the law of his home state – Wisconsin – should govern his claims, since he was prescribed Risperdal in Wisconsin and developed gynecomastia there.
On Monday, a three-judge panel of the Pennsylvania Superior Court found that the trial court erred in only considering Pennsylvania and New Jersey law when it addressed the issue of punitive damages.
“We agree with Strange that it is necessary to remand for the trial court to allow Strange to develop an individual record on choice-of-law as it relates to his unique circumstances and to set out the facts and state interests important to his particular case,” the appeals court stated in its January 8th decision. “As such, it is necessary to reverse the order granting partial summary judgment for the defendants on the punitive damages issue and remand for the trial court . . .”
More than 6,000 Risperdal lawsuits are pending in the Philadelphia Court of Common Pleas, all of which were filed on behalf of plaintiffs who allegedly developed gynecomastia as a result of their treatment with the antipsychotic medication. Monday’s decision could pave the way for all of these plaintiffs to pursue punitive damages against Johnson & Johnson and Janssen.
The Philadelphia Court of Common Pleas has convened several Risperdal gynecomastia trials since February 2015. Three other plaintiffs have been awarded compensatory damages ranging from $2.5 million to $70 million.
Risperdal is an atypical antipsychotic medication approved to treat adult and adolescent schizophrenia, bipolar disorder in adults and children ages 10-to-17, and irritability in children (5-to-16 years of age) with autistic disorder. It is also frequently prescribed off-label to treat children with ADHD.
Risperdal was not approved for any pediatric indications until October 2006. At that time, the drug’s label was modified to note that 2.3% of male adolescents treated with Risperdal had developed gynecomastia. Prior to that, the Risperdal label had characterized the condition as a rare side effect that affected few than 1 in 1,000 patients.
In November 2013, Johnson & Johnson and its Janssen Pharmaceuticals unit agreed to pay $2.5 million to settle criminal and civil charges related to from the marketing of Risperdal and other drugs. Among other things, federal prosecutors had accused the companies of illegal marketing Risperdal for unapproved pediatric indications and concealing side effects associated with its use