A Philadelphia judge said Thursday that Johnson & Johnson chief executive officer Alex Gorsky cannot be called as a trial witness by lawyers for a 17-year-old boy whose family sued the company because he grew breasts after taking Risperdal, an antipsychotic drug made by J&J.
In a big victory for the health-care giant, Philadelphia Common Pleas Court Judge Arnold New agreed to the request by J&J defense lawyers to quash the subpoena from the boy's attorneys.
J&J said in a motion that Gorsky was scheduled to be in Asia on business. But the company clearly wanted to avoid having its CEO called to the stand to answer - publicly, under oath - allegations of inappropriate marketing of the drug to children and harmful side effects.
Gorsky was ordered to sit for a deposition in May, so both sides knew the possible questions.
This the second of a string of Risperdal trials in cases filed by Philadelphia lawyers Stephen Sheller and Brian McCormick in which they hoped to put Gorsky on the stand.
In the first one, a 21-year-old man who was prescribed Risperdal as a child had to have a double mastectomy in which tissue was suctioned out of his breasts. With a jury waiting on Sept. 10, J&J settled with the man rather than risk having the judge rule that Gorsky must testify.
Jury selection in the second case began Thursday, with the trial scheduled to begin Monday, and in this one, New ruled before the last minute.
The J&J defense team, led by Drinker Biddle lawyer Kenneth Murphy, argued that Gorsky should not have to testify because Gorsky was so high in the management hierarchy at Janssen Pharmaceutical, the J&J subsidiary that made Risperdal, that he would not have had firsthand knowledge of events.
But the plaintiffs' lawyers submitted as evidence Gorsky's resumé, according to which he knew enough to claim credit for increased sales of Risperdal. According to the transcript of the deposition, Gorsky said he signed off on a $500,000 payment to a doctor to start a program in 2002 at Massachusetts General Hospital with hopes of increasing the use of Risperdal in children.
At that time, Risperdal was approved by the U.S. Food and Drug Administration to treat only adults with schizophrenia and bipolar disorder.
J&J faces hundreds of individual suits over Risperdal. Several states, including Louisiana, South Carolina and Arkansas, sued J&J and won big money over allegations of inappropriate promotion of drugs through taxpayer-funded Medicaid plans. The Arkansas judgment was $1.2 billion, but J&J is appealing all three. It paid $158 million to stop a trial in Texas. The company won its Pennsylvania case. J&J is also negotiating with the federal government in a separate case that might involve payments of $2 billion.
In 2007, J&J made $4.7 billion on antipsychotic drugs, most of which were varieties of Risperdal.