Lawyer Asks Appeals Court to Remove Limit on Risperdal Damages
An autistic Maryland man who was awarded nearly $2 million in damages for developing female breasts as a result of medication prescribed to him as a child should be permitted to seek punitive damages, his lawyer argued to a Pennsylvania appeals court in July 2017.
In 2003, then nine-year-old Nicholas Murray began taking the powerful antipsychotic medication Risperdal, prescribed to treat a sleep disorder.
At that time, the drug had only been approved by the U.S. Food and Drug Administration for the treatment of schizophrenia in adults. It wasn’t until 2008 that the agency approved the drug to treat irritability in children and adolescents on the autism spectrum.
According to court testimony, by the time Murray reached middle school, he had developed large breasts — a condition known as gynecomastia — and was subjected to teasing by classmates during gym class. Even after he quit taking Risperdal and shed some weight, Murray’s male breast growth remained.
Jurors found that Johnson & Johnson and its subsidiary, Janssen Pharmaceuticals, failed to warn doctors and patients about the risk of gynecomastia in boys, and awarded Murray $1.75 million.
But a judge later reduced that amount to $680,000, finding that Murray’s Risperdal damages were “bound by Maryland law limiting noneconomic damages to $680,000,” according to Law 360.
Murray’s case, according to his lawyer, was also handicapped by a May 2014 judge’s ruling that found that because of Janssen’s “extensive business ties to New Jersey,” the drug maker “was subject to a state law there barring punitive damages for claims related to drugs that were subject to premarket approval or licensure by the Food & Drug Administration.”
Murray’s Risperdal damages lawsuit is part of a mass tort litigation in the Philadelphia County Court of Common Pleas, where thousands of other similar lawsuits are pending.
Murray’s lawyer argued that his client is being hit by a double-whammy: Maryland law, which caps noneconomic damages, and New Jersey law, which prevents Murray from recovering punitive damages against Janssen.
“These are two different states constructing two different balances and here you have a guy who’s getting caught on the wrong side of both,” Murray’s attorney argued to the Pennsylvania appellate court. The plaintiff’s lawyer maintains that the recovery of punitive damages should be determined on a case-by-case basis.
However, a lawyer arguing on behalf of Janssen placed the onus on the plaintiffs in the Risperdal damages lawsuit for failing to request a “case-by-case analysis when litigating the punitive damages issue on a global basis,” Law 360 reported.
According to Janssen’s attorney, the plaintiff is seeking to circumvent an unsuccessful quest to have Pennsylvania’s punitive damages law to apply to all of the Risperdal damages cases.
“They asked for a global ruling, they didn’t get the global ruling they wanted, so they changed course … and came back with a different argument,” Janssen’s attorney argued.
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