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Arkansas to Ask Court to Reconsider Drug Fine

Thu, 04/03/2014 - 6:29pm
Andrew Demillo - Associated Press - Associated Press

Arkansas Attorney General Dustin McDaniel said yesterday he plans to ask the state Supreme Court to reconsider its decision tossing out a $1.2 billion judgment against drugmaker Johnson & Johnson over the marketing of the antipsychotic drug Risperdal.

McDaniel told the Arkansas Code Revision Commission that he would file a petition asking the court to revisit last month's ruling that the state misapplied the Medicaid fraud law in its suit against Johnson & Johnson and its subsidiary, Janssen Pharmaceutical Inc. The state alleged the companies didn't properly communicate Risperdal's risks and marketed it for off-label use, calling the practices fraudulent.

The Arkansas Cod Revisions Commission voted to provide McDaniel's office with an analysis comparing the 1993 law as it was passed to the way it was written into state code. The commission is responsible for making technical corrections to state code.

McDaniel said the analysis may be helpful in asking for a new hearing, saying justices raised an issue that hadn't been addressed in filings when they said the panel had overstepped its bounds in the way it had put the 1993 measure in the state's law books.

"It's obviously of great concern to us and it's of great concern to the Legislature and to the code revision commission that the Supreme Court has taken this unprecedented approach to analyzing the case," McDaniel said after the meeting. McDaniel said he would file the petition by Monday.

The court ruled that the panel "substantively altered" the meaning of the Medicaid fraud law when it was codified and that it was originally intended to regulate health facilities.

The panel reviewed a sentence diagram comparing the wording of the legislation and its wording in the code that was conducted by Carolyn Magans, legal editor supervisor for the Bureau of Legislative Research. Magans said that with the exception of minor punctuation changes and the addition of subdivisions, she found no difference between the two.

The drugmakers defended their practices in a statement Thursday, saying they were pleased with last month's ruling.

"Since the outset of this lawsuit, we have maintained that we did not violate Arkansas' Medicaid Fraud False Claims Act or the state's Deceptive Trade Practices Act, and we were gratified to have our position validated by the court's decision," the companies said.

Risperdal was introduced in 1994 as a "second-generation" antipsychotic drug, and it earned Johnson & Johnson billions of dollars in sales before generic versions became available. The drug is used to treat schizophrenia, bipolar disorder and irritability in autism patients.

An Arkansas jury found the New Jersey-based companies liable in 2012. Pulaski County Circuit Judge Tim Fox then ordered the companies to pay $5,000 for each of the 240,000 Risperdal prescriptions for which Arkansas' Medicaid program paid during a 3 1/2-year span.

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Follow Andrew DeMillo on Twitter at www.twitter.com/ademillo

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