June 18, 2013
LITTLE ROCK – Attorney General Dustin McDaniel announced today that the attorneys general of 35 states and 65 members of the Arkansas General Assembly have joined him in asking the Arkansas Supreme Court to uphold a $1.2 billion judgment against Johnson & Johnson and Ortho-McNeil-Janssen Pharmaceuticals Inc. for defrauding the state's Medicaid system and deceiving Arkansas consumers about the safety risks of the antipsychotic drug Risperdal.

In an unprecedented, bipartisan showing, the attorneys general and state legislators, in separate requests, asked the Court today for permission to submit amicus curiae briefs, concurrently with McDaniel's filing of his brief in response to Janssen's appeal.

The AARP, the group Public Citizen and former FDA Commissioner Dr. Donald Kennedy also submitted amicus briefs for consideration by the Court.

McDaniel maintains that a Pulaski County jury's April 2012 verdict was consistent with Arkansas law; and the $1.2 billion in penalties assessed by Pulaski County Circuit Judge Timothy Fox were proper, based on the company's serial violations of state law.

"This company lied to our medical providers and put profits ahead of people," McDaniel said. "As state Attorney General, it is my responsibility to prevent actions like those, which defrauded our Medicaid program and jeopardized the health of our elderly and our children.

"My colleagues across the country realize the significance of this case to state attorneys general who are also responsible for protecting the citizens of their state, and that is why they are taking the rare step of seeking to be heard on an issue in the Arkansas Supreme Court. This extraordinary coalition of AGs, lawmakers and consumer-advocacy groups has come together to support the important policy behind this case. To deter this type of fraudulent, harmful behavior, states must have the ability to pursue penalties against the wrongdoers."

Though the pharmaceutical company argues that the penalty is too excessive, McDaniel's and the supporting briefs contend that the $1.2 billion clearly falls within the range prescribed by state statute. In fact, Fox assessed penalties per violation on the lower end of that range. The large fine is the result of the serial violations of the law over the course of a number of years. In trial court, the state argued successfully that the defendants on multiple occasions deceived Arkansas medical providers about risks of weight gain and diabetes, as well as strokes among elderly patients.

The state and amici also argue that the state's claims are not pre-empted by federal law and that Janssen's marketing tactics are not protected under the First Amendment.

The amicus briefs were filed by prominent Arkansas attorneys acting as local counsel for the groups. Those attorneys are Sen. Robert Thompson of Paragould for the members of the General Assembly; Allen Gordon, former state senator and senior assistant attorney general, for the states' attorneys general; former Arkansas Supreme Court Justice Annabelle Imber Tuck and John Burnett for Public Citizen; Neil Chamberlin of Little Rock for AARP and former state Department of Human Services Chief Counsel Charles Hicks of Little Rock for former FDA Commissioner Kennedy.

The case is Ortho-McNeil-Janssen Pharmaceuticals Inc. v. Arkansas, 12-1058