Photo: JB Reed/Bloomberg News.

The Pennsylvania Superior Court has upheld the $2.5 million verdict that was awarded in the first case to go to trial from Philadelphia's Risperdal mass tort program.

A unanimous three-judge panel on Wednesday rejected drugmaker Janssen Pharmaceuticals' efforts to overturn the verdict in Pledger v. Janssen Pharmaceuticals, which a Philadelphia jury handed up more than three years ago. The ruling also sent the case back for the trial court to consider whether the plaintiffs should be able to proceed with punitive damages claims.

As part of its effort to overturn the verdict, Janssen focused much of its arguments on the plaintiff's experts, specifically contending that the lower court should have granted a mistrial after the plaintiffs sought to change experts midtrial.

According to Superior Court Judge Eugene Strassburger, who wrote the panel's 39-page opinion, the plaintiff's first expert, a pediatrician and endocrinologist from Missouri, had examined the plaintiff, Austin Pledger, in Alabama, and plaintiffs' counsel initially sought to introduce the doctor's testimony through a videotaped deposition. However, Janssen contended that, since the doctor was not licensed in Alabama, his examination of Pledger violated Alabama law. After Janssen's motion, the doctor told the plaintiffs he was no longer willing to testify, so the plaintiffs had another doctor—the doctor who later testified at trial—examine Pledger.

Although Janssen called for a mistrial based on the switch, the trial judge rejected the drugmaker's arguments, saying its accusation about the doctor was “extraordinary and seemed calculated for maximum surprise.”

Strassbuger agreed.

“Moreover, we conclude the relief granted by the trial court was appropriate under the circumstances,” Strassburger said.

After a month-long trial, the jury in Pledger found that Janssen failed to warn of the potential for Risperdal to cause gynecomastia, a condition in which males grow enlarged breasts. Pledger, a 20-year-old from Alabama, took Risperdal, which is an antipsychotic, to assist with behavioral symptoms related to autism. He claimed the drug caused him to grow large breasts, beginning when he was 8 years old, and that—barring a mastectomy—the condition is permanent.

Kline & Specter attorneys Thomas Kline and Charles “Chip” Becker, who are representing Pledger, said in an emailed statement they were pleased with the ruling.

“This litigation has unquestionably turned strongly in the plaintiffs' favor with many additional listings ahead, including two trials devoted solely to punitive damages,” they said.

A spokeswoman for Janssen said, “We are disappointed in the court's ruling and will consider our options going forward.”