Risperdal. Photo: Wikimedia Commons

The pharmaceutical company slammed earlier this month with an $8 billion verdict is arguing that the trial judge's decision to high-five some jurors and pose in photos with them following the award demonstrates a pro-plaintiff bias and warrants the judge's removal from the case.

Johnson & Johnson, which was hit with the record-breaking multibillion-dollar verdict Oct. 8, filed a motion Thursday asking that Philadelphia Court of Common Pleas Judge Kenneth Powell, who oversaw the more than three-week trial, recuse from handling a post-trial motion seeking to strike down the verdict or have it greatly reduced. The six-page motion asks that another Philadelphia judge be brought in to review the case.

The motion, citing declarations by Patterson Belknap Webb & Tyler attorney John Winter, who was part of the defense's trial team, said that Powell's conduct immediately after the verdict went too far in congratulating the jury and showed a pro-plaintiff bias.

"Congratulating the jury and giving them certificates to frame was appropriate to communicate to the jury that the court appreciated their service. But when the judge gave some of the jurors high-fives in the jury box, and posed with them for pictures taken by plaintiff's counsel, the judge communicated much more," Drinker Biddle & Reath attorney David Abernethy, who filed the motion, said. "To a defendant who had sat through unbalanced ruling after unbalanced ruling—as documented in the post-trial motion filed contemporaneously herewith—the message was clear: the jury had received and acted on the pro-plaintiff message that the judge had sent."

The motion also said Powell's post-verdict conduct violated Rule 2.8 of the Code of Judicial Conduct, which, the memo said, bars "a display of partisan glee that in nowise can be characterized as 'patient, dignified, and courteous.'"

In an emailed statement, Kline & Specter attorney Thomas Kline, who tried the case along with Houston-based Arnold & Itkin attorney Jason Itkin, disputed J&J's version of events following the verdict, and said "The entire episode was an example of judicial decency and appreciation expressed by a trial judge to citizens for one month of jury service."

In his statement, Kline said that, following the verdict, a jury poll was taken and it was found that the jury voted 10-2 in favor of the verdict. At that point, Kline said, the judge, in the presence of all counsel, thanked the jury for its service, then stepped down from the bench and handed each juror individual certificates.

"This is all of record. The judge shook hands with individual jurors. He was asked for a photograph. The judge obliged. All of the jurors participated, including the two who voted against the verdict," Kline's statement continued, adding defense counsel made no objections regarding the photo.

Kline's statement further said there was no high-five, and no complaint about a high-five, until the recusal motion was filed.

"This motion is a continuation of Johnson & Johnson's calculated broadside on the Pennsylvania judiciary, which has spawned vituperative allegations against a sitting judge. We will answer these false attacks in our responsive papers," Kline said.

In an emailed statement, a spokesman for J&J said, "We filed a motion in the Murray case to set aside the factually and legally baseless verdict that resulted from improper restrictions on the evidence and an incorrect application of the law."

The spokesman declined to comment about whether the company or defense counsel had reported the alleged code of conduct violations to the state's Judicial Conduct Board.

Thursday's recusal motion is not the first time J&J has sought to remove Powell from a case. In the spring the company, represented again by attorneys from Drinker Biddle, sought to have Powell removed from a pelvic mesh case that resulted in a $41 million verdict and to have the judge barred from handling any further pelvic mesh cases. Those efforts, however, were repeatedly rejected, including, in one instance, by the state Supreme Court.

The latest efforts to recuse Powell come little more than a week after the jury slammed J&J and its subsidiary Janssen Pharmaceuticals with the multibillion-dollar verdict over allegations that the companies failed to warn about the link between Risperdal and a condition called gynecomastia, which causes boys and young men to develop excessive breast tissue. The award was solely for punitive damages after the case, Murray v. Janssen, initially came to a $1.75 million verdict by a separate jury, which was later reduced to $680,000.

According to a review of The Legal's archives, the verdict was the largest award for a single plaintiff in the state since at least 1994, when the paper began tracking each year's highest award.

J&J's 138-page post-trial motion argued the trial court made numerous legal errors and erroneous evidentiary rulings, and asked that either the award be overturned notwithstanding the verdict, a new trial be allowed or the verdict be "severely remitted."

One of the arguments J&J made is that the "grossly excessive" award violates the company's due process rights and goes against U.S. Supreme Court precedent.

In its recusal motion, J&J further cited portion's of Kline's closing argument in which he referenced "all the children in the world," and said those comments went against safeguards limiting the case to the party before the court. The fact that Powell allowed those remarks, and then "celebrated" the verdict, J&J contended in its recusal motion, showed that another judge needs to be brought in to handle the case going forward.

"The judge who celebrated the fruits of the disregard of the Supreme Court's mandate cannot be looked to for correction of his own error," Abernethy said.