Philly judge: J&J's Alex Gorsky does not have to testify

A Philadelphia judge said Thursday that Johnson & Johnson chief executive officer Alex Gorsky can't be called as a witness by a plaintiff in a lawsuit against the company related to its antipsychotic drug Risperdal.

In a big victory for the health-care giant, Philadelphia Common Pleas Court Judge Arnold New ruled that Gorsky - who led the J&J subsidiary Janssen, which makes Risperdal - does not have to testify and, in effect, answer allegations of inappropriate marketing of the drug to children.

The plaintiff is a 17-year-old boy from Sherman, Tex. He was prescribed Risperdal and began taking it when he was five years old. He began growing breasts when he was 12.

Jury selection began Thursday, with the trial scheduled to begin Monday.

This the second of a string of Risperdal cases filed by Philadelphia attorneys Stephen Sheller and Brian McCormick in which they hoped to put Gorsky on the stand.

The first one was to begin on Sept. 10. In that one, a 21-year-old man, prescribed Risperdal as a child, had to have a double mastectomy in which tissue was suctioned out of the breast he grew. With a jury waiting, J&J settled with the man rather than have a judge potentially rule that Gorsky must testify.

In the second case, the J&J defense team, led by Drinker Biddle attorney Kenneth Murphy, had argued that the subpoena for Gorsky to testify should be quashed because Gorsky was scheduled to be in Asia on business. In support of the motion to quash, defense attorneys submitted an affidavit from Gorsky's administrative assistant, who outlined his travel plans.

Gorsky was ordered to sit for a deposition in May. The transcript of that deposition is here.

J&J faces hundreds of individual suits over its marketing practices related to Risperdal. So far, at least, it is also on the losing side of multi-million judgments in state-led Medicaid cases in Louisiana, South Carolina and Arkansas. It paid $158 million to stop a trial in Texas. The company is also negotiating with the federal government in a separate case that might involve payments of $2 billion.