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The Pennsylvania Superior Court has ruled that a $70 million jury verdict against Johnson & Johnson subsidiary Janssen and in favor of a child allegedly injured by antipsychotic drug Risperdal was not excessive, and has also remanded the case for a second look at whether there should be a punitive damages trial.

A three-judge panel of the appellate court unanimously ruled in A.Y. v. Janssen Pharmaceuticals to uphold Philadelphia Court of Common Pleas Judge Paula Patrick's judgment entered after the jury sided with A.Y., a male plaintiff who claimed that the anti-psychotic medication caused him to grow excessive breast tissue.

"We discern no reversible error with the jury's award of damages, as we do not view it as inconsistent with the evidence," Judge Correale Stevens wrote for the panel in a Nov. 26 opinion. "A.Y. was just 4 1/2 years old when first prescribed Risperdal, and he has never since known life without gynecomastia. At 16 years of age when the jury considered its award, A.Y. was living with severe and permanent disfigurement. The undisputed record confirms he has been routinely bullied and teased by peers and is too humiliated to ever remove his shirt in recreational or social situations where it would be customary for boys to do so when enjoying ordinary pleasures of youth."

But the panel, which also included Judges Deborah Kunselman and Jack Panella, reversed the portion of Patrick's ruling that said New Jersey law applied to the case and therefore foreclosed the possibility of punitive damages. The panel pointed to recent rulings in Stange v. Janssen and Murray v. Janssen Pharmaceuticals, which held, respectively, that New Jersey law does not apply to the Risperdal litigation globally and that each case needed to be assessed individually to determine whether New Jersey law or the law of the plaintiff's home state applied.

"Here, appellees present the same arguments made by the plaintiffs in the aforementioned cases, and both parties agree the decisions by our court remain binding precedent," Stevens said, remanding A.Y. for a conflict-of-law analysis between New Jersey law and that of the plaintiff's home state of Tennessee.

Patrick had issued a lengthy opinion in June 2018, saying the compensatory damages award was within the jury's discretion.

"This court did not invalidate the jury's verdict because the award was not unreasonable," Patrick said. "Assessing damages in a case such as this is a difficult task. … Upon consideration of the evidence presented at trial and the damages sustained by plaintiffs, this court believes that the jury's finding should not be disturbed."

Stevens agreed.

"The jurors were free to call upon their personal experiences and sensibilities to assess such intangible harms, and their valuation could reflect the length of time A.Y. would reasonably be expected to live with this disfiguring, embarrassing condition," Stevens said. "Under such facts, the jury exercised sound discretion."

The appeals court also rejected the defense's argument that federal law preempted the plaintiff's claim that Tennessee law required Janssen to change labeling to reflect juvenile Risperdal users' heightened risk of gynecomastia.

Janssen argued that it would have been impossible for it to comply with both Tennessee law and federal law, which requires the U.S. Food and Drug Administration to approve drugmakers' label changes. But Stevens said Janssen failed to show that the FDA would have rejected a change to the label that strengthened the warning of potentially adverse effects.

Counsel for A.Y., Charles "Chip" Becker and Tom Kline of Kline & Specter in Philadelphia, along with Jason Itkin of Arnold & Itkin in Houston, said in a statement, "This jury verdict affirmance and rejection of Johnson & Johnson's preemption arguments dovetails with the appellate rulings against Johnson & Johnson relating to the drug Risperdal, where similar verdicts have been upheld, punitive damages have been reinstated, and cases dismissed under the statute of limitations have been reinstated, all paving the way for continued progress and additional jury verdicts against a company whose misconduct toward children has been exposed in the courts of this commonwealth; we look forward to the punitive damages trial in this case."

Janssen was represented by Kenneth Murphy of Drinker Biddle & Reath in Philadelphia. A spokesperson for Johnson & Johnson did not respond to a request for comment.