The Superior Court of Pennsylvania issued two decisions in November, dealing victories to both plaintiffs and defendants in a state mass tort case involving Janssen Pharmaceutical’s anti-psychotic drug, Risperdal.
The first decision reversed a 2015 verdict issued by a trial jury that relieved Janssen, a subsidiary of Johnson & Johnson, of liability, even though the jury agreed that the company failed to warn plaintiff William Cirba of the risk of gynecomastia (added breast tissue).
The second decision, issued in a separate order, dealt with plaintiffs Jonathan Saksek and Joshua Winter, who started taking Risperdal in 1998, noticed gynecomastia soon thereafter but didn’t seek legal action until 2014, after they had seen a commercial advertising the mass litigation. The question before the court was whether they had exceeded the statute of limitations. The Superior Court upheld the trial court’s opinion that the plaintiffs should have known well before 2013 that their gynecomastia might be related to Risperdal, as a warning label had been distributed in 2006.
Victory for Plaintiff
In the first case, the three-judge panel agreed with plaintiffs that the trial court had irresponsibly used its authoritative discretion when it allowed a physician’s assistant’s testimony to be admitted as evidence. Michelle Baker, the assistant, asserted that the gynecomastia was most likely linked to Cirba’s weight gain and not the anti-psychotic drug in question. Baker’s testimony was framed as expert testimony, despite the fact that Baker was not appropriately designated as such.
Judge Jack Panella, who authored the unanimous decision, wrote the following: “Defendants’ experts opined that weight gain rather than Risperdal ingestion caused plaintiff to appear to have gynecomastia. Baker’s testimony, in which she opined that plaintiff’s weight gain, rather than his Risperdal usage, caused him to appear to have gynecomastia, was causation testimony offered by a witness who personally treated the plaintiff.” He concluded, “[W]e find that the trial court abused its discretion in denying plaintiff’s request for a new trial, limited to the issues of causation and damages.” The Superior Court reversed and remanded the case, asking the trial court to open a new trial concerning causation and damages.
The Superior Court’s ruling came as a major victory for plaintiffs, as it overturned the only successful defense verdict in the Risperdal mass tort. Janssen, needless to say, was not happy with the ruling. A spokesperson for the company had this to say: “Regarding the Cirba case, we are disappointed the Superior Court remanded this case for a new trial, and we are reviewing our options going forward.”
Victory for Defendant
The second decision marked a defeat for plaintiffs and a (minor) win for the defendant. The same Superior Court upheld a trial court’s decision to grant summary judgement due to the statute of limitations. The court added that the statute of limitations should have been limited to 2006, and not 2009, because the warning label identifying gynecomastia as a risk was released in 2006. Panella, who authored this opinion as well, wrote the following: “[I]n October 2006, the label on Risperdal changed, expressly linking usage of the drug to gynecomastia. Their breasts were clearly not temporary by 2006. Accordingly, by that date, ‘reasonable minds would not differ in finding that’ plaintiffs knew, or should have known, of their injuries and the cause of those injuries by this point.”
Plaintiffs involved in the mass tort case allege that Risperdal is linked to increased levels of prolactin, which can lead to the growth of female breasts. Many of the plaintiffs involved in the tort are young men who have taken Risperdal for mental disorders. Cirba, for instance, took the drug after being diagnosed with oppositional defiant disorder (or ODD). Plaintiffs also allege that Janssen knew of the potential side-effects but failed to warn patients.
Gynecomastia is linked to lactation, breast tenderness and nipple discharge. Some patients must undergo gynecomastia surgery, liposuction or other invasive surgeries to deal with the issue.