Risperdal bottle on the shelf inside a Cambridge, Massachusetts pharmacy. Photo: JB Reed/Bloomberg

A Risperdal case that was dismissed midtrial in 2016 has been reinstated by a Pennsylvania appellate court.

A unanimous three-judge panel of the Pennsylvania Superior Court on Tuesday reversed an order that granted a motion for nonsuit in the case T.M. v. Janssen Pharmaceuticals, and remanded the case to the Philadelphia Court of Common Pleas for a new trial.

The trial court judge who dismissed the case in December 2016 did so after determining that the plaintiffs failed to provide sufficient evidence under Texas products liability law to support a key expert's causation testimony. The Superior Court, however, determined that, although the parties agreed to apply Texas law to the substantive issues in the case, the trial court should have evaluated the issue under Pennsylvania law since the threshold issue of the reliability of the evidence supporting the expert's testimony is a procedural question.

Viewing the reliability and admissibility of the evidence under Pennsylvania law showed that the plaintiffs had indeed provided sufficient evidence to overcome the non-suit motion, Judge Mary Jane Bowes said.

“Viewing the foregoing evidence in the light most favorable to the plaintiffs, we find it was legally sufficient under Pennsylvania law to make out a prima facie case for the jury under Texas substantive law governing failure to warn,” Bowes, who wrote the panel's 35-page opinion, said.

In a statement, leading attorneys in the consolidated Risperdal litigation, Thomas Kline and Charles “Chip” Becker of Kline & Specter and Arnold & Itkin attorney Jason Itkin, said, “The court's comprehensive opinion sets the stage for a jury to decide this case. Our clients look forward to that opportunity.”

T.M. is one of more than 7,000 cases pending in the Philadelphia Court of Common Pleas alleging that Johnson & Johnson subsidiary Janssen failed to properly warn about the risks of the antipsychotic drug Risperdal. The plaintiffs are alleging that the medication led to a condition known as gynecomastia, which is the growth of excessive breast tissue in young men and boys.

According to Bowes, who was joined in Tuesday's ruling by Judges Victor P. Stabile and Maria McLaughlin, at the close of the plaintiff's case in the T.M. trial, Janssen made a motion for nonsuit. The company contended that the plaintiff's causation expert, Dr. Mark P. Solomon, did not meet the causation requirements for scientific reliability under Texas law.

The plaintiffs countered that Texas standards governing the reliability of scientific evidence under Texas law was a procedural issue, and so the court should follow Pennsylvania law, which adheres to the standard outlined in Frye v. United States.

Philadelphia Court of Common Pleas Judge Sean Kennedy agreed with Janssen and dismissed T.M. based on his determination that Solomon's testimony was inadequate.

According to a transcript of proceedings, in dismissing the case, Kennedy said, “At the conclusion of my research and my staff's research, it is my opinion that under Texas law, Dr. Solomon's testimony is legally insufficient to prove causation in this case, and as such, I am granting defendant's motion for compulsory nonsuit.”

Bowes, however, determined that Pennsylvania law applied on the procedural issue about the reliability of the causation evidence, and further determined that the plaintiff provided sufficient evidence to survive non-suit based on Texas substantive law.

“A non-suit is proper only if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action,” Bowes said. “Viewing all of the evidence in the light most favorable to the plaintiffs, we conclude the evidence was sufficient to make out a prima facie failure-to-warn case based on Texas substantive law.”

A spokeswoman for Janssen did not return a message seeking comment.