Big Pharma giant Johnson & Johnson lost a motion for summary judgment in a Risperdal case in Beaumont, Texas yesterday. J&J subsidiary Janssen pharmaceuticals had filed a motion for summary judgment that attempted to toss out of court the Risperdal-induced gynecomastia claim of 20-year-old Jacoby Moore.
Matthews & Associates Attorneys represent Plaintiff
Mr. Moore’s attorneys, David Matthews and Julie Rhoades of Matthews & Associates Law Firm in Houston, had filed a petition charging Janssen with failure to warn Mr. Moore that Risperdal could cause gynecomastia, a painful condition in which a male develops female-like breasts.
J&J claimed Statute insulated Company
Janssen had attempted to toss the claim by arguing the company was protected by a Texas statute which says an FDA-approved warning is presumed adequate; so a person cannot sue for failure to warn.
An exception to the statute, however, says that if a plaintiff can prove a drug company used off-label promotion (i.e., promoted for treatment of a condition not approved by the FDA) and that that off-label promotion caused a doctor to prescribe the drug off label, then no presumed adequacy exists and a lawsuit can move forward against the drug maker.
Fact issue Prevails for Plaintiff
“We had enough proof to raise a fact question,” said Ms. Rhoades. She explained that in most previous cases in which Janssen or some other drug maker filed similar summary judgment motions, the plaintiffs did not have sufficient evidence to override the presumed adequacy of the warning.
J&J Sales People pushed Risperdal for Kids
Though the treating doctor in this case claimed in earlier deposition that Janssen sales representatives had not discussed off-label promotion of Risperdal to children with him, Janssen’s own files contradicted the claim, with more than 250 call notes between the doctor and Janssen sales people. This evidence was sufficient to raise a fact issue on whether or not the off-label promotion caused the doctor’s off-label prescriptions. Under Texas law, fact questions must be resolved by a jury.
Plaintiff was 4 when Risperdaled
Jacoby Moore was only four years old when he was first given Risperdal, which, his lawyers argue, caused him to develop gynecomastia.
Mr. Moore’s case is set to be tried in Jefferson County District Court in Beaumont beginning June 6, 2016.
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