In Re: Risperdal Litigation Appeal of: W.C.
2451 EDA 2015
| Pa. Super. Ct. | Nov 13, 2017Background
- Plaintiff W.C. (treated with Risperdal as a child) sued Janssen/Johnson & Johnson claiming Risperdal caused gynecomastia and that defendants negligently failed to warn; most claims were dismissed on summary judgment leaving negligence only.
- Trial focused on causation: plaintiff’s expert (Dr. Solomon) testified W.C. had tennis-ball–sized gynecomastia caused by childhood Risperdal; defense experts disputed causation and said enlargement was due to weight gain.
- Physician’s assistant Michelle Baker (treating provider) gave deposition testimony attributing chest enlargement to weight gain and opined prolactin would have normalized after discontinuing Risperdal.
- At trial the court allowed defense counsel to use two tennis balls and a 75‑slide PowerPoint as visual aids in closing; plaintiff objected but the court found the aids merely summarized admitted testimony.
- Defense experts testified (in response to hypotheticals) that a typical chest exam would detect tennis‑ball–sized breast tissue; plaintiff objected to the factual basis and scope of those opinions but the court admitted them.
- The jury found defendants negligent for failure to warn but concluded that negligence did not cause W.C.’s alleged gynecomastia. Plaintiff moved for a new trial; the court denied it. On appeal the Superior Court reversed and remanded for a new trial limited to causation and damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Use of tennis balls in closing | Tennis balls were prejudicial and not evidence | Tennis balls were a permissible visual aid reflecting plaintiff’s expert testimony | Court: Permissible; no abuse of discretion |
| 2. Use of PowerPoint in closing | PowerPoint slides weren’t admitted/authenticated and prejudicial; plaintiff entitled to preview | Slides merely summarized trial testimony; authentication not required for visual aid | Court: Permitted as accurate summary of evidence; no error |
| 3. Defense experts’ testimony about detectability on chest exam | Opinions lacked factual basis and exceeded expert reports | Opinions were responsive hypotheticals based on record and within scope | Court: Properly admitted; no error |
| 4. Baker’s deposition testimony attributing cause to weight gain | Baker was a fact witness, not disclosed as an expert; her causation opinion required expert qualification and disclosure | Baker had medical training (PA) and could testify; her observations were lay testimony | Held: Trial court erred — Baker’s causation opinion was expert testimony admitted without qualification/disclosure; prejudice requires new trial limited to causation and damages |
Key Cases Cited
- Paliometros v. Loyola, 932 A.2d 128 (Pa. Super. 2007) (standard for appellate review of denial of new trial)
- Hyrcza v. W. Penn Allegheny Health Sys., Inc., 978 A.2d 961 (Pa. Super. 2009) (scope of permissible argument and inferences in opening/closing)
- Pelzer, 612 A.2d 407 (Pa. 1992) (visual aids in argument are within trial court discretion)
- Bainhauer v. Lehigh Valley Hospital, 834 A.2d 1146 (Pa. Super. 2003) (fair scope of expert testimony compared to pretrial disclosures)
- Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140 (Pa. 2003) (causation for physical conditions generally requires expert testimony)