Anatomy of a Closing: How O'Melveny's Petrocelli Framed Winning Argument in Risperdal Bellwether
In the first bellwether trial in California over the anti-psychotic Risperdal, it took a Los Angeles Superior Court jury less than two hours to find for the drugmakers. What did lead lawyer Daniel Petrocelli say to them at closing?
November 19, 2017 at 04:18 PM
5 minute read
In the first bellwether trial in California over the anti-psychotic Risperdal, it took a Los Angeles Superior Court jury less than two hours to find for defendants Janssen Pharmaceutical and Johnson & Johnson last week.
The suit was brought by Bradley Wolken, a 24-year-old man from Kansas. He alleged that he developed gynecomastia, or glandular breast tissue growth in males, from taking Risperdal as a child. He was prescribed the medication “off-label” for severe violence and behavioral issues, before it was approved by the FDA for pediatric use.
O'Melveny & Myers partner Daniel Petrocelli led the defense team, which also included partners Amy Laurendeau and Houman Ehsan.
Here's a look at quotes from Petrocelli's closing argument, based on a transcript of the proceedings, showing how he framed the case.
>> “Their presentation, folks, made a mockery of medical science. A mockery of it. … You cannot extract one piece of information just to make a lawsuit.”
>> “This case is not based on the truth. This is a made-up case and it was manufactured from Day One, from the time that Ms. Shannon Turner saw a lawyer ad on television.”
>> “Ms. Turner and her son drove over 700 miles in search of a doctor who would say what they needed to make this case. After striking out four times in a row, they found Dr. Midyett, who agreed to tell them what they needed to be here in court. He agreed to do it before he even met, laid eyes, or touched the breasts of Bradley Wolken. He agreed that he would come in and say that he had gynecomastia and that he got it from Risperdal. What kind of doctor does that?”
>> “[Ms. Turner] takes the witness stand and tells you that she would have refused the medicine for her son … no matter how much he needed it. She would have refused it if they had uttered the words 'breast enlargement' or 'gynecomastia,' but she would not have refused it had they told her about the risk of death. Why are you being given such ridiculously and knowingly false testimony folks? You are being given this kind of testimony to make a case where there is no proof. There is no proof.”
>> “If Bradley Wolken had gynecomastia, he might not have known that word, and his mother might not have known that word, but surely he would have seen something unusual about his body as a young boy or even as a teenager.
“Yes, I know they are saying that he was overweight and had a lot of excess weight and he didn't notice it until he lost the weight, but that is not reasonable. He wasn't always overweight. And where are the pictures of him as a young boy? Are you trying to tell me there is not a single picture? His mother says there were no pictures, not one picture, the only pictures were the ones that you gave to the lawyers to make the case?”
>> “Remember, gynecomastia is not having enlarged breasts. Gynecomastia in males is having a certain type of tissue inside your breast called glandular tissue … That is why you have to see inside. So all of this, of course, starts when Ms. Turner sees the lawyer ad. Still no doctor visit. Still. Now she has filed a civil lawsuit against my client—think about it—saying that this young man has gynecomastia from a pill that he took over a decade ago and never once checked out if he actually has it. That is called a frivolous lawsuit.”
>> “This whole thing has been an exercise to try to prove that there were serious safety issues that were known when Bradley Wolken was first prescribed Risperdal so the label should have been updated at that time. That is completely unsupported by the evidence in this case and common sense.”
>> “Let's take a look at what the label said at the time. Look at all these very serious side effects that Risperdal had at that time known to the doctors. Tardive dyskinesia. Myocardial infarction. Cardiopulmonary arrests. N.M.S., which is a severe muscle rigidity disease. Gynecomastia is serious also, but compared to some of these—these threaten your life. These don't go away with a minor surgery.
“What they are trying to get you to accept is the idea that these doctors, with this woman desperate for help for her son, and this boy in severe psychological distress, would not have been prescribed this medicine if this label had two or three more sentences in it.”
>> “What happened when he went off the medicine? He went off the medicine in 2001 after six months on it, from April to the end of 2000. So what happens in 2001? He spirals into severe disorders. He ends up in a residential treatment facility for four to five months. He stopped taking it at the end of 2005. So what happened in the beginning of 2006? He assaulted a 10-year-old neighbor, causing life-threatening injuries which required him to be sent to a juvenile detention facility for a few months. Then finally, what happened when stopped taking it altogether in the summer of 2006? He committed repeated lewd acts towards his younger sister and he was sent to a juvenile detention facility for two years.”
>> “I submit to you that Janssen acted completely reasonable. No reasonable manufacturer would have updated a label based on impartial, incomplete and erroneous information, let alone meaningless information. It would not have mattered anyway, because the prescription decision was already made.”
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