Risperdal. Photo: Housed via Wikimedia Commons

The Pennsylvania Supreme Court has declined to hear the appeal of a Johnson & Johnson subsidiary that was hit with a $2.5 million verdict over the drug Risperdal’s association with gynecomastia.

The state’s justices denied allocatur in Pledger v. Janssen Pharmaceuticals on Aug. 2.

The Pledger case was the first Risperdal lawsuit in Philadelphia to result in a plaintiff’s verdict.

The plaintiff, Austin Pledger, was represented on appeal by Kline & Specter. Firm co-founder Tom Kline said in an email Monday, “With the compensatory jury verdict affirmed with finality, we look forward to a punitive damages trial on behalf of an autistic child who was terribly injured by the misconduct of Johnson and Johnson.”

Of the court’s decision, a Janssen spokesman said only, “We are aware of the ruling.”

Previously, the state Superior Court upheld the $2.5 million verdict and 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 argument 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’s October 2018 opinion, the plaintiff’s first expert, a pediatrician and endocrinologist from Missouri, had examined 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 monthlong 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. The suit 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.