LITTLE ROCK — In a 4-3 decision, the state Supreme Court on Thursday said it would not reconsider its March 20 ruling that overturned a $1.2 billion judgment against Johnson & Johnson over the drug maker’s marketing of the anti-psychotic drug Risperdal.
The high court denied a petition for rehearing from the state attorney general’s office in a one-sentence per curiam order. Chief Justice Jim Hannah and Justices Donald Corbin and Paul Danielson dissented, as they did in the earlier decision.
The judgment was awarded to the state in April 2012 in a lawsuit filed by Attorney General Dustin 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 said last month in its majority opinion that the Medical Fraud False Claims Act did not apply to the drug maker, based on a finding that the Arkansas Code Revision Commission had codified the law in a way that conflicted with legislative intent.
The majority also said a Food and Drug Administration letter about the drug should not have been admitted as evidence because the danger of prejudice outweighed its value as evidence.
McDaniel later asked the court to reconsider its ruling, arguing that neither the state nor the drug maker had raised the issue of whether Code Revision had wrongly or rightly codified the law, so the Supreme Court should not have considered it. He also argued that the FDA letter was properly admitted and was not prejudicial.
McDaniel said in a statement Thursday he would re-litigate the Deceptive Trade Practices claim and seek the maximum penalties allowed by law.
“I am extremely disappointed that the court decided to deny the petition in this case, considering the basis for the court’s original decision was never addressed until oral argument. That parted with longstanding precedent, and it was impossible for either party to adequately respond to the concerns raised at that time,” he said.
McDaniel said it “creates imbalance and uncertainty for our business community and all laws if the court can simply undo the work of the Code Revision Commission spontaneously, at any time.”
A spokeswoman for Janssen Pharmaceuticals said last month the company was pleased with the Supreme Court’s decision to overturn the judgment and said the drug maker is strongly committed to ethical business practices.