Risperdal. Photo: Wikimedia Commons

Tensions ran high during a hearing Wednesday over Johnson & Johnson's accusations that a Philadelphia judge showed pro-plaintiff bias when he posed for photos and allegedly high-fived jurors after the pharmaceutical giant was hit with an $8 billion award earlier this month.

For much of the nearly 90-minute hearing about recusal, Philadelphia Court of Common Pleas Judge Kenneth Powell spoke directly to J&J's counsel, Drinker Biddle & Reath attorney David Abernethy, saying none of his rulings were biased and that the multibillion-dollar award was not caused by any of his actions, but was the result of the lawyers' actions.

"The bottom line is you have to take some responsibility for an $8 billion verdict by looking at the way the case was tried. Particularly opening and closing statements. Look at the speechifying by your counsel, and putting [on the stand] witnesses who would not answer questions," Powell said.

"It was the way the case was tried by both sides that resulted in this verdict," he added. "Not what I did."

The judge also had criticism for the style of the defense's closing in the case, which focused on the side effects of the anti-psychotic drug Risperdal, which was often prescribed to boys with autism spectrum disorders. Plaintiffs argued during the litigation that the drug's side-effects affected boys' secondary sexual characteristics.

"The closing speech in this case was interrupted 10 times. Why? Because of the persistence of saying the same thing over and over again," Powell said. "You think these jurors don't understand what she's doing?"

Powell further said the allegations that he high-fived jurors were "fabricated," part of a "concocted story," and could become the subject for disciplinary proceedings.

"The affidavits are inaccurate and something that has to be looked at for future disciplinary issues and future pro hac vice" applications, Powell said, although later in the hearing he said he had not made any complaints to the Disciplinary Board.

Regarding the photographs, Powell said the jurors were celebrating the end of a long trial, not the specific verdict. He also said he congratulated and shook hands with jurors, thanking them for their service, and they asked to take a photo with him because he had developed a rapport with the jurors. The situation, he said, was not unique to the Murray trial.

At times the hearing also took a personal tone, with Powell saying the accusations could affect his career as it is something the Judicial Conduct Board could review. He added that he did not believe Abernethy, who the judge noted several times previously tried cases before him, actually believed the motion he was submitting to the court.

"I don't operate that way, and you know that," Powell said to Abernethy. "I can't walk down the hall without someone saying, 'hey judge,' as if to high-five me."

Abernethy repeatedly said he was simply raising a motion based on evidence in the record, and contended that, along with the affidavits from defense counsel about Powell's alleged post-trial conduct, several rulings Powell made limiting the potential defenses in the case further showed the judge's alleged anti-defendant bias.

Powell responded that any perceived limitations flowed in large part from the way the case was remanded from the Superior Court for a trial on punitive damages alone.

Regarding the affidavits, Abernethy called the trial attorneys who submitted them "distinguished lawyers" with "unimpeachable integrity," and, when it came to the photographs, he noted that at least one of the pictures was taken by plaintiffs counsel.

"I think for a judge in a case to pose for photographs, I do submit is inappropriate," Abernethy said, adding that defense counsel has not yet been given access to the photographs. "We think there are legitimate causes for concern when there are photos taken by lawyers involved in the case, and when the lawyers on the other side can't even see them."

After more than three weeks of trial starting last month, the jury in Murray returned what is likely is the largest verdict for a single plaintiff in Pennsylvania history. New York attorney John Winter of Patterson Belknap Webb & Tyler and Ethel Johnson of Morgan, Lewis & Bockius, who is from Texas, tried the case for J&J. Little more than a week after the verdict came down, J&J filed lengthy post-trial motions, along with the motion seeking recusal, which cited affidavits from Winter and Johnson.

The six-page recusal motion said, among other things, 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.'"

The motion, as Powell noted several times during Wednesday's hearing, was not the first time J&J has sought to remove him 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.

Thomas Kline of Kline & Specter, who represented the plaintiff, responded to the recusal motion during Wednesday's hearing, saying it was a "broadside against your integrity, against your reputation."

"Mr. Abernethy made a wholesale assault against your integrity, your reputation and your legacy," Kline said. "They have no right to argue for something illegitimate and wrong. That's his and the Drinker firm's argument. Those are owned exclusively by him, and they are not legitimate. Whatever comes of this down the road, Mr. Abernethy and the Drinker firm own it. They own this whole mess."

The arguments mirrored those made in a response brief filed Tuesday afternoon, which said, among other things, that defense counsel never raised the issue before the motions were filed, and that the "entire episode was an example of personal decency and appreciation" that was "something to be praised, not savaged in a spiteful motion based on affidavits that lack context and are factually wrong."

After Kline made his argument, Powell denied the recusal motion, and the hearing moved on to J&J's motion for remittitur. Powell did not immediately rule on the defense request to reduce the verdict.