LITTLE ROCK — Attorney General Dustin McDaniel said Thursday he will ask the state Supreme Court to reconsider its ruling that overturned a $1.2 billion judgment against drug maker Johnson & Johnson over its marketing of the antipsychotic drug Risperdal.
In a 4-3 decision on March 20, the state’s highest court reversed the judgment awarded to the state in April 2012 in a lawsuit filed by McDaniel in Pulaski County Circuit Court.
The suit alleged that Johnson & Johnson and subsidiary Janssen Pharmaceuticals minimized the risks of Risperdal and marketed it for off-label use, in violation of the state Medical Fraud False Claims Act and the state Deceptive Trade Practices Act.
The Supreme Court found that the Medical Fraud False Claims Act did not apply to the drug maker and that a Food and Drug Administration letter about the drug should not have been admitted as evidence.
McDaniel said Thursday the majority found that the state Code Revision Commission had incorrectly codified the Medical Fraud False Claims Act — which he said was not something that either side in the case had argued during years of litigation.
"That was never raised until it was raised at oral argument for the first time by the Supreme Court and Justice (Josephine) Hart asked the question. Then Justice Baker wrote the opinion, and it was the thrust of the opinion," McDaniel said after appearing Thursday before the Code Revision Commission.
He said that after oral arguments he filed a supplemental brief "citing cases from the Supreme Court back to the 1850s that say no one, including the Supreme Court itself, can raise an issue for the first time at oral argument."
"It violates fundamental principles of due process (which guarantee) that parties have an opportunity to flesh out an issue and brief it. That just didn’t happen here," McDaniel said.
Janssen Pharmaceuticals said after the Supreme Court’s ruling that it was pleased with the decision and is strongly committed to ethical business practices.