Risperdal. Photo: Housed via Wikimedia Commons

An attorney representing a man injured by the antipsychotic medication Risperdal painted the drugmaker Johnson & Johnson as a malicious company that pushed for the drug's off-label use in children despite evidence linking the drug to excessive growth of breast tissue in boys and young men all in an effort to maximize profits over the safety of children.

"They have a target. They know who they want to make money from: kids. And not just any kids. Kids who are the most vulnerable in our society. Kids with autism and Asperger's and ADD," Houston lawyer Jason Itkin of Arnold & Itkin told the Philadelphia jury Tuesday morning.

Itkin made the comments during the opening statement for the punitive damages phase of the case Murray v. Janssen Pharmaceuticals. The case marks the first time a Pennsylvania jury has been able to consider awarding punitive damages in a Risperdal case.

The lawyer for Janssen Pharmaceuticals, however, offered a contrasting view of the company, saying drug developers were in frequent contact with regulators and medical professionals, and that allegations over the company's conduct misrepresents the facts and second-guesses difficult decisions.

"It is easier to criticize than it is to create," Morgan, Lewis & Bockius attorney Ethel Johnson of Houston said. "Once you're heard all the evidence [you will see] that Janssen has not engaged in any conduct that's evil or with malice."

The punitive damages trial began nearly four years after another Philadelphia jury awarded the plaintiff, Nicholas Murray, $1.75 million over claims that Janssen Pharmaceuticals failed to adequately warn about the link between Risperdal and gynecomastia, a condition in which boys grow excessive breast tissue.

In early 2018, the Pennsylvania Superior Court reversed a Philadelphia judge's ruling that had barred Risperdal plaintiffs from seeking punitive damages in the litigation. The Superior Court panel, however, had determined that, instead of globally applying New Jersey law, which prohibits punitive damages, to the mass tort litigation, each plaintiff could apply the law of their home state on the punitive damages issue.

The ruling substantially raised the stakes for the mass tort, which has nearly 7,000 cases pending in Philadelphia and has seen several multimillion-dollar verdicts, including one that totaled $70 million.

And the tension was clear Tuesday, as plaintiffs counsel objected numerous times during Janssen's opening statement and the drug company moved for a mistrial once the opening statements were over.

In moving for a mistrial, New York attorney John Winter of Patterson Belknap Webb & Tyler, who is also representing the drugmakers, cited allegedly incorrect comments Itkin made about J&J's net worth and a supposed plan to make $3.3 billion selling Risperdal, as well as an allegation that J&J's CEO, Alex Gorsky, had been promoted to his current position due to his work selling Risperdal.

"There will never be any evidence in this case to support that assertion," Winter said about Gorsky. "It was done to inflame bias and ill will towards my client."

Objections made by plaintiffs' counsel, Thomas R. Kline of Kline & Specter, during Johnson's opening statement targeted references the attorney made to Murray, including her statements that the company had no malice or evil intent toward Murray or any other boy who took Risperdal. Kline argued the punitive damages trial was not about Murray, and the issues involving his specific claims had previously been litigated in the 2015 liability trial.

Judge Kenneth Powell, who is overseeing the punitive damages trial, sustained plaintiffs' counsel's objections, but denied the motion for mistrial, saying the defendants will have ample opportunity at trial to present evidence contradicting the allegedly incorrect statements.

"It's not evidence," Powell said of the opening statement. "The jury has been advised of that by me and will be [advised] again."