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PHILADELPHIA — (Mealey’s) Topamax manufacturer Janssen Pharmaceuticals on March 10 said it will appeal a $3 million March 7 birth defect verdict in the Philadelphia County Common Pleas Court even though it reached an agreement to resolve a number of similar cases in the state court, including a case that was in trial until March 5 (Payton Anderson v. Janssen Pharmaceuticals Inc., No. 111201405, Pa. Comm. Pls., Philadelphia Co.).
The March 7 verdict came in a trial in which the parents of Payton Anderson, now 5, of Wisconsin, allege that he was born with a cleft lip as a result of his mother, Kelley, being prescribed Topamax for migraines while she was pregnant with Payton.
According to Payton’s attorneys, the 12-member jury found that Janssen, a subsidiary of Johnson & Johnson, failed to warn Kelly Anderson’s doctors about the birth defect risk from taking Topamax during the first trimester of pregnancy. David Matthews of Matthews & Associates in Houston said in a statement posted on the firm’s website that Payton has undergone several surgeries and will require several more as she grows.
“We proved to the jury that Johnson & Johnson knew the risks of Topamax and yet failed to warn of its dangers,” Matthews said. “We’re grateful that the jury was able to see through Johnson’s smoke-and-mirrors defense.”
Janssen: Repeated Warnings
In a statement, a Janssen spokesperson said, “The verdict is not supported by the evidence presented at trial, and we have very strong grounds to challenge the verdict on appeal. We will be doing so immediately.”
“While we empathize with the plaintiff’s situation, the evidence showed that Mrs. Anderson took Topamax during her pregnancy despite the repeated warnings of four of her doctors, including her prescribing physician, who knew of the side effect profile of Topamax,” the spokesperson said. “Since Topamax was first introduced to the market in 1996, our company has appropriately informed healthcare providers of the potential side effects for women who use the medicine during pregnancy.”
Topamax is approved to treat epileptic seizures and severe migraine headaches.
Anderson’s causation experts were Dr. Richard Finnell, Dr. Phillip J. Lupo Jr., Peggy Pence, Ph.D., and Dr. Darrell Henderson.
Summary Judgment Win
On Feb. 5, Judge Arnold L. New granted Janssen’s motion for summary judgment on the claims of strict liability design defect, negligent design, breach of warranty and punitive damages. He denied summary judgment on the remaining theories of liability.
The trial lasted four weeks. The jury deliberated four days.
Judge New presided.
Settlement Terms Confidential
The Janssen spokesperson confirmed that Janssen “has reached an agreement to resolve a number of Topamax cases pending in the Philadelphia County Court of Common Pleas, including Brown v. Janssen. The terms of the agreement are confidential.”
The court’s Complex Litigation Center lists 134 active Topamax cases on the docket.
The case of Josiah Brown, et al. v. Ortho-McNeil-Janssen Pharmaceuticals Inc. (No. 110503417), got under way on Feb. 24 in the Common Pleas Court.
In Brown, Contrenia Brown alleged that she was prescribed Topamax for the treatment of migraine headaches while she was pregnant. She claimed that the drug caused her son, Josiah, now age 5, to be born with a cleft palate, for which he has had to undergo several surgeries.
Judge George Overton presided over the Brown trial.
Earlier Plaintiff Verdicts
In the first Pennsylvania Topamax birth defect trial, a jury on Oct. 30 awarded the plaintiff $4 million (See 11/7/13, Page 9). In the second trial, a jury on Nov. 18 awarded $10.9 million in damages.
In addition to Matthews, Conrad E. Adams and Iveliz Santiago of Matthews & Associates, the Andersons are represented by David W. Debruin of Jenner & Block in Wilmington, Del.; Rosemary Pinto of Feldman & Pinto in Philadelphia; Trent B. Miracle and Andrew S. Williams of Simmons, Browder, Gianaris, Angelides & Barnerd in Alton, Ill.; Dennis C. Sweet of Sweet & Associates in Jackson, Miss.; and Scott A. Love and Blake A. Deady of Clark, Love & Hutson in Houston.
In Anderson, Janssen is represented by John D. Winter, James F. Murdica and Peter C. Harvey of Patterson, Belknap & Tyler in New York and Melissa A. Graff, Kenneth A. Murphy, Molly E. Flynn, William L. Carr, Kathryn E. Deal and William V. Essig of Drinker, Biddle & Reath in Philadelphia.
In Brown, Brown is represented by Scott Love and Blake A. Deady of Clark, Love & Hutson in Houston; Eric H. Weitz of Messa & Associates in Philadelphia; Rosemary Pinto of Pinto & Feldman in Philadelphia; and Danyl S. Patterson of Philadelphia.
In Brown, Ortho-McNeil-Janssen is represented by Alexander G. Calfo of Barnes & Thornburg; Melissa A. Graaf, Kenneth A. Murphy and Molly E. Flynn of Drinker, Biddle & Reath in Philadelphia; Charles F. Morrow of Butler Snow in Memphis, Tenn.; Adam J. Spicer of Butler Snow in Ridgeland, Miss.; and James F. Murdica of Patterson Belknap in New York.
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