After Janssen Pharmaceuticals racked up more than $150,000 in vendor fees accessing medical records for plaintiffs filing suit in the Risperdal mass tort litigation, a dispute has flared up over how plaintiffs counsel should provide that information and whether they should be able to saddle defendants with the costs if plaintiffs counsel chooses to use a third-party vendor.

Over the past month, Janssen, a Johnson & Johnson subsidiary, has been sparring with the Houston-based law firm of Arnold & Itkin over who should have to pay $156,000 in costs after the Texas firm hired the vendor Lexitas to handle some of its clients' records. The dispute is being litigated in the Philadelphia Court of Common Pleas, where nearly 7,000 cases are pending over Risperdal.

The documents that the parties are sparring over are medical, pharmaceutical and other records that are typically provided as part of what is called a "plaintiff's fact sheet," which is a case management document used in mass tort litigation to help the parties evaluate cases.

According to the filing, Arnold & Itkin had been providing the PFS documents directly to Janssen, but late last year it hired Lexitas to begin handling the documents. According to Janssen, the company continued accessing the documents through a hyperlink connecting to the vendor, only to learn later that the vendor was expecting to get paid for providing the information. That's when Janssen cried foul, according to the court documents.

"It cannot be fair to require defendants to pay their own vendors to gather and provide the required [defendant fact sheet] documents, and also pay the plaintiffs' vendors for the cost of gathering and providing required PFS documents," Janssen said in a motion filed Feb. 3 by Faegre Drinker Biddle & Reath attorney David Abernethy.

The Risperdal mass tort has been the dominant litigation in Philadelphia's Complex Litigation Center since 2017, when the mass tort saw a 219% increase over a 12-month period. According to attorneys handling the litigation, the explosive growth the court saw over that year was due mostly to the parties scrapping a tolling agreement, which led thousands of plaintiffs to file suit in order to preserve their claims.

In response to the dispute over its use of the Lexitas vendor, Arnold & Itkin challenged the notion that Janssen did not know it would be responsible for accessing the documents, and argued that it has long had to pay for obtaining records through the third-party vendor RecordTrak, which it described as Janssen's vendor.

Janssen's proposal to have plaintiffs counsel pay for the documents it accesses through Lexitas is a "'heads I win, tails you lose' solution," the plaintiffs' reply memo said.

"This type of cost-shifting is not fair to Lexitas, and especially not plaintiffs' counsel," Arnold & Itkin attorney Jason Itkin said in the Feb. 10 filing. "This is not what the [case management order], the Rules of Procedure, or common sense require."

However, a response from Janssen filed last week said that Itkin's response conflated general discovery practices that were previously negotiated by litigation leaders, with the discovery for specific documents that are supposed to be provided as part of the PFS.

Janssen also warned, in its filing from earlier this month, that other firms involved in the Risperdal litigation might begin to follow Arnold & Itkin's lead.

"If those firms are permitted to shift the cost of complying with the CMO to defendants, each likely will insist on its own document vendor, and defendants will have to deal with and pay a multitude of companies to get the PFS documents they are entitled to," Janssen said. "Chaotic, as well as unfair."

A spokesman for Janssen declined to comment.

Itkin referred comment to Thomas Kline of Kline & Specter, who along with Itkin and Sheller P.C.'s Stephen Sheller, is leading the Risperdal litigation. In an emailed statement, Kline said there is nothing new about using third-party vendors to obtain medical records.

"J&J knowingly contracted with a third-party vendor to obtain copies of plaintiff's medical records," he said. "Here, J&J should not be allowed to shift the cost of paying medical records to plaintiffs. Each side should pay their own medical vendors."

The Risperdal program recently caught national attention, after a jury handed up an $8 billion punitive damages award against Janssen over allegations that it failed to properly warn about the dangers of Risperdal. The award, which was later reduced to $6.8 million, marked the first time a plaintiff could seek punitive damages in the litigation.

The program could also see some additional growth, after the Pennsylvania Supreme Court in November overruled a lower court decision that set a strict deadline for bringing Risperdal claims at two years after June 2009. Instead, the justices said the start date of the statute of limitations must be determined by a jury following a factual analysis in each individual case.