A lawyer for Pennsylvania urged a panel of seven Commonwealth Court justices on Wednesday to reverse decisions by two Philadelphia Common Pleas Court judges and let a jury decide whether Johnson & Johnson inappropriately profited from sales of the antipsychotic drug Risperdal through the taxpayer-funded Medicaid program.
J&J's lawyer, Edward Posner of Drinker Biddle, countered by telling the justices that the commonwealth had shown "a complete and total failure" to prove its case. J&J did nothing wrong, Posner argued, and he urged the court to let stand the 2010 dismissal of Pennsylvania's lawsuit. J&J subsidiary Janssen Pharmaceuticals makes Risperdal.
Commonwealth Court panels try to reach decisions within 90 days and those decisions can be appealed to the state Supreme Court. Millions of dollars are at stake, if results in similar suits in other states are any guide.
J&J earlier this year agreed to pay $158 million to settle a Texas state case involving Risperdal payments. Then a jury found in favor of the State of Arkansas and a judge fined the company $1.1 billion, though J&J said it would appeal. The same Houston law firm, Bailey, Perrin Bailey, which assisted the Arkansas attorney general, is working on the case for Pennsylvania.
In Pennsylvania, the state had sought to show that J&J had tricked it into paying millions more for Risperdal than it should have.
The state's case suffered a blow in January 2010 when, among other rulings, Common Pleas Judge Howland Abramson dismissed a count related to Pennsylvania's assertion that it could sue Janssen as a "provider" under Medicaid fraud laws. Five months later, Judge Frederica Massiah-Jackson (to whom the case had been transferred) stopped its trial after a week of testimony. Agreeing with a defense request, she ruled that the state had not presented enough evidence.
Lawyer Robert Cowan said in his presentation that Massiah-Jackson erred in "wrongfully taking the case away from the jury." Among the evidence presented were two FDA letters criticizing Janssen promotional materials.
"The materials and promotional messages Janssen has disseminated contain false and/or misleading information about the safety and effectiveness of Risperdal," a 1999 FDA letter to the company said.
The Commonwealth Court's decision could turn on several factors, including the arcane naming, pricing and reimbursement system used by federal and state governments to pay for drugs through insurance programs such as Medicare and Medicaid. Several justices asked questions about that system, and the corresponding ability to stop allegations of fraud.