Appeals court upholds $258M Risperdal verdict
John O'Brien Sep. 6, 2012, 5:21am
LAKE CHARLES - A Louisiana appeals court has upheld the $258 million verdict in state Attorney General Buddy Caldwell's lawsuit against Janssen Pharmaceutical over the prescription drug Risperdal.
A St. Landry Parish jury reached the verdict in October 2010. Caldwell, through private attorneys hired to represent the State, alleged the company misrepresented weight gain-related side effects like diabetes and marketed the drug for off-label uses.
The $258 million figure represented a civil penalty based on 35,542 violations of the Louisiana Medical Assistance Programs Integrity Law. The issue in the appeal was whether Caldwell could recover civil penalties without proving damages.
"After carefully reviewing the record, we find that the trial court did not abuse its discretion in interpreting the MPAIL statute to mean that if the attorney general was able to prove 'false, misleading, misrepresentative, deceitful, intent to defraud type statements, attempts to defraud type statements,' Janssen would be liable for civil penalties under MAPIL," Third Circuit Judge Phyllis Keaty wrote.
"The trial court paid attention to the language and punctuation of the statute and read the pertinent subsections... Its interpretation of the statute is a reasonable one."
Former Attorney General Charles Foti filed the lawsuit, as well as a related one over the drug Zyprexa, in 2004.
Caldwell's office was represented by several private attorneys who will split $70 million in fees if the decision stands. Those attorneys are:
-Patrick Morrow, James Ryan and Jeffrey Bassett of Morrow & Morrow in Opelousas;
-Kenneth DeJean of Lafayette;
-Robert Lyle Salim of Natchitoches;
-Michael Perrin and Fletcher Trammel of Bailey, Perrin & Bailey in Houston;
-Kenneth Fibich of Fibich Hampton in Houston; and
-Robert Cowan of Houston.
Janssen, a subsidiary of Johnson & Johnson, recently paid $181 million to settle claims by 37 state attorneys general. Holdout AGs have had varying levels of success with their individual claims.
Texas settled with the company for $158 million, though the State is expected to receive only $61 million. The rest will go to the federal government and a whistleblower.
An Arkansas judge assessed a penalty of $1.1 billion against the company in Dustin McDaniel's lawsuit. A South Carolina judge assessed a penalty of $327 million.
Massachusetts Attorney General Martha Coakley filed her own lawsuit in August 2011. The company won cases brought against it by West Virginia Attorney General Darrell McGraw and former Pennsylvania Gov. Ed Rendell.
Bailey Perrin has been a driving force of the lawsuits, representing many of the states. It gave the Arkansas Democratic Party $70,000 in 2006 and $125,000 in campaign contributions to Mississippi Attorney General Jim Hood, who also hired it.
It gave $75,000 in campaign contributions and $16,000 in air travel to Rendell, who filed the suit after now-Gov. Tom Corbett, then the attorney general, declined to do so.