Drug fine is backed in filings

Almost half the Arkansas Legislature, a former federal Food and Drug Administration commissioner, the AARP and a coalition of attorneys general from 35 states have joined supporters of Attorney General Dustin McDaniel to urge the state Supreme Court to uphold the $1.2 billion fine against drug-manufacturer Johnson & Johnson over the anti-psychotic drug Risperdal.

A Pulaski County jury in April 2012 found the company, through its Janssen Pharmaceutica subsidiary, violated the Arkansas Medicaid Fraud False Claims Act and the Deceptive Trade Practices Act by hiding or downplaying potentially dangerous side effects of the drug in its marketing and labeling.

The record-setting fine subsequently imposed by Circuit Judge Tim Fox was based on 238,874 Medicaid-funded prescriptions filled between December 2002 and June 2006, a time frame determined by the statute of limitations over the course of the litigation,which began in 2007. The fine would go into special state funds to benefit Medicaid and consumer-protection efforts.

With the verdict and fine on appeal to the Arkansas Supreme Court, supporters of both the drug company and McDaniel have been lining up to file “friend of the court” briefs on the issues raised at trial.

On Thursday, the high court accepted filings from a 65-member bipartisan legislative group headed by state Sen. Robert F. Thompson, D-Paragould; AARP, the advocacy group formerly known as the American Association of Retired Persons; Public Citizen, the consumer-rights group founded by Ralph Nader; and Dr. Donald Kennedy, a Stanford University biologist who was an FDA commissioner for President Jimmy Carter’s administration; and the attorneys general coalition.

Johnson & Johnson has claimed on appeal that the fine is illegally excessive. The lawmaker group disputes that characterization, arguing that the “penalties … are part of a comprehensive scheme to protect the taxpayers’ resources as well as the public health … regardless of whether the offender is an individual who has violated [the law] just a handful of times or a large company that has violated them repeatedly over a period of years.”

The lawmakers have urged the court to give deference to the statutes as they’re written, arguing that the proper way to change them is in the political arena, not through judicial review.

The attorneys general coalition brief argues that the high court should reject claims by the drug manufacturer that its constitutional free-speech rights would be violated if the verdict on its labeling were allowed to stand.

With the jury ruling that the company had withheld necessary warnings on its labeling and made false representations about the drug to more than 2,000 Arkansas doctors, the fine “directly advances Arkansas’ interest in curbing the dissemination of false commercial speech,” the coalition argues. Overturning the verdict would dilute the states’ powers to protect their residents, the filings state.

“It is of critical importance to the states that their authority to regulate false or misleading commercial speech not be unduly curtailed by judicial expansion of First Amendment defenses against such regulation,” the brief states. “[Johnson & Johnson’s] arguments misapply basic First Amendment principles. [They] argue that the First Amendment shields their false speech.”

The Supreme Court had earlier accepted briefs criticizing the verdict from the Arkansas Chamber of Commerce, the Product Liability Advisory Council Inc. and Pharmaceutical Research and Manufacturers of America trade groups, and the public-policy center Washington Legal Foundation.

The chamber disputes in its brief, filed in April, that the $1.2 billion fine is legal. The 1,200-member statewide business group argues that the amount violates protections in both the state and federal constitutions, particularly when there’s no evidence that anything Johnson & Johnson did with Risperdal had harmed the public or caused Arkansas to lose money.

“The state presented no evidence at trial that [Johnson & Johnson’s] alleged conduct caused a single physician to be misled or a single [prescription] to be improperly prescribed. There was no proof presented that any claim paid by Arkansas Medicaid for Risperdal should not have been paid,” the brief states. “There was no evidence that Risperdal caused physical injury to any Arkansas Medicaid recipient.”

State senators who signed on to support the verdict include: Cecile Bledsoe, R-Rogers; Paul Bookout, D-Jonesboro; David Burnett, D-Osceola; Eddie Cheatham, D-Crosset; Linda Chesterfield, D-Little Rock; Jonathan Dismang, R-Beebe; Joyce Elliott, D-Little Rock; Jake Files, R-Fort Smith; Stephanie Flowers, D-Pine Bluff; Jeremy Hutchinson, R-Benton; Keith Ingram, D-West Memphis; David Johnson, D-Little Rock;Michael Lamoureux, R-Russellville; Uvalde Lindsey, D-Fayetteville; Bruce Maloch, D-Magnolia; Bobby Pierce, D-Sheridan; Bill Sample, R-Hot Springs; Gary Stubblefield, R-Branch; Larry Teague, D-Nashville; and David Wyatt, D-Batesville.

State representatives are Charles Armstrong, D-Little Rock; Eddie Armstrong, D-North Little Rock; John Baine, D-El Dorado; Scott Baltz, D-Pocahontas; David Branscum, R-Marshall; Mary Broadaway, D-Paragould; Ann Clemmer, R-Benton; Harold Copenhaver, D-Jonesboro; Jody Dickinson, D-Newport; John Edwards, D-Little Rock; Deborah Ferguson, D-West Memphis; David Fielding, D-Magnolia; Kim Hammer, R-Benton; Fonda Hawthorne, D-Ashdown; David Hillman, D-Almyra; Mike Holcomb, D-Pine Bluff; John Hutchison, R-Harrisburg; Joe Jett, D-Success; Patti Julian, D-NorthLittle Rock; David Kizzia, D-Malvern; Sheilla Lampkin, D-Monticello; Greg Leding, D-Fayetteville; Fredrick Love, D-Little Rock; Stephen Magie, D-Conway; Stephanie Malone, R-Fort Smith; Mark McElroy, D-Tillar; George Mc-Gill, D-Fort Smith; Reginald Murdock, D-Marianna; Betty Overbey, D-Lamar; Mark Perry, D-Jacksonville; James Ratliff, D-Imboden; Chris Richey, D-West Helena; Warwick Sabin, D-Little Rock; Nate Steel, D-Nashville; Tommy Thompson, D-Morrilton; John Vines, D-Hot Springs; Brent Talley, D-Hope; Wes Wagner, D-Manila; David Whitaker, D-Fayetteville; Butch Wilkins, D-Bono; Henry Wilkins, D-Pine Bluff; Darrin Williams, D-Little Rock; James Word, D-Pine Bluff; and Marshall Wright, D-Forrest City.

States supporting the verdict are Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont and Washington.