The Pennsylvania Superior Court has opened the door for Plaintiffs in the Risperdal mass tort to seek punitive damages. We believe this ruling significantly raises the stakes of the litigation, which currently involves more than 6,000 pending cases in Philadelphia. A three-judge Superior Court panel ruled on Jan. 8 that Plaintiffs may seek to have the law of their home state apply to their case when it comes to the issue of whether they should be allowed to seek punitive damages at trial. The ruling reversed a decision that had applied New Jersey law to the litigation globally. New Jersey products liability law specifically prohibits punitive damages.
This ruling came as a three-judge panel considered an appeal from Timothy Stange, who took Risperdal beginning 2006 to treat symptoms associated with Tourette’s syndrome, after he won $500,000 in compensatory damages from J&J subsidiary Janssen Pharmaceuticals Inc. in December 2015. The trial judge had not allowed punitive damages to be asked for. The opinion, written by Judge Kate Ford Elliott, stated:
It is necessary to remand for the trial court to allow Stange 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. As such, it is necessary to reverse the order granting partial summary judgment for the defendants on the punitive damages issue.
The appeal in the Stange case challenged a global order entered as part of a mass tort program in Philadelphia County, which was established to consolidate a large number of Risperdal cases. The lower court’s order had found that Janssen’s business ties with New Jersey allowed it to take advantage of a state law there shielding pharmaceutical companies from punitive damages for claims related to medications approved by the U.S. Food and Drug Administration (FDA). But lawyers for Stange argued that Wisconsin law should have applied to the case because he was both prescribed the drug and suffered his injury in that state.
Under Wisconsin law punitive damages are capped at the larger of either $200,000 or twice the amount of any compensatory damage award. Janssen countered that New Jersey law was more appropriate given that its principal place of business was in the state, and the relevant labeling and marketing decisions had been made there. The appeals court, however, found that Philadelphia County, in issuing a global order governing all Risperdal cases, had improperly limited its choice-of-law analysis to either New Jersey law or Pennsylvania law. The Superior Court said that the trial court had not fully addressed the issue.
It remains to be seen, however, whether the trial court, hearing the case on remand, will decide that Wisconsin has a greater interest than New Jersey when it comes to punitive damages. Tom Kline, a lawyer with Kline & Specter PC representing Stange, discussing the Superior Court’s ruling, said:
This is a pivotal decision in the Risperdal litigation. Each state obviously has a paramount interest in protecting its citizens and the physicians who give warnings to patients and their parents.
In addition to applying to Risperdal cases moving forward in Philadelphia, the ruling could also have an effect on four other cases where juries have already ruled for Plaintiffs, awarding some $75 million in compensatory damages. Aside from the punitive damages issue, the Superior Court’s decision also rejected Janssen’s efforts to challenge the liability verdict in the Stange case. The court found that causation expert Mark Solomon had been properly allowed to testify despite what Janssen argued was his failure to use a generally accepted scientific method to rule out other potential causes for Stange’s breast growth.
Stange is represented by Tom Kline, Chip Becker, Christopher Gomez and Ruxandra Laidacker of Kline & Specter PC and Stephen Sheller of Sheller PC. The case is Timothy Stange v. Janssen Pharmaceuticals Inc. et al., (case numbers 739 EDA 2016 and 1549 EDA 2016), before the Pennsylvania Superior Court.
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