Now that a South Carolina jury has decided that Johnson & Johnson's Risperdal marketing violated consumer-protection laws, the state and the company are wrangling over an appropriate punishment. J&J lawyers asked Circuit Judge Roger Couch to impose a "small penalty," while the state has urged a $5,000 penalty for each violation of the South Carolina Unfair Trade Practices Act--a judgment that could amount to billions of dollars, Bloomberg reports.
J&J says the state has exaggerated the impact of its infractions. "We have a case here where nobody has been deceived and nobody has been harmed," attorney Edward Posner argued on behalf of J&J. "At most a small penalty should be imposed."
However, lawyers for the state's Attorney General Alan Wilson said J&J deserved a big penalty for the misleading promotional letter it sent to 700,000 doctors in the U.S., including 7,194 in South Carolina. The company later corrected the letter--after FDA took issue with "false and misleading claims" that overstated Risperdal's superiority to competing drugs and minimized the potentially serious risks.
The state's lawyers have totted up hundreds of thousands of potential violations--722,000 Risperdal prescriptions written, 183,144 sales-rep visits to doctors, and 496,565 boxes of samples distributed--saying that J&J should fork over the $5,000 penalty for each violation the judge decided to count. "He determines the number of violations, and he determines the amount of penalty per violation," attorney Donald Coggins told Bloomberg. "He may pick some violations and assign hundreds of dollars to them, or he may pick some and assign $5,000 per violation. If he assigned $5,000 to every violation, it would be billions of dollars."
Not surprisingly, J&J's lawyer said the judge shouldn't consider every filled prescription as a violation of the consumer protection law. "There's no evidence, no evidence at all, that the letter caused a single Risperdal prescription to be written," Posner argued.
Both sides now have to wait for an answer. After hearing the various arguments, Couch delayed his ruling on the damages.