Court of Appeals Affirms $16 Million Judgment in Defective Fentanyl Patch Case

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by Eric Pearson

CHICAGO – The First District of the Illinois Court of Appeals has affirmed  a $16.5 million  judgment against Janssen Pharmaceutica Inc. and ALZA Corporation (two Johnson & Johnson subsidiaries – NYSE:  JNJ) in a wrongful death case involving their Duragesic fentanyl pain patch On June 30, 2011, just three weeks after hearing oral argument, the Court of Appeals published its opinion affirming in all respects the November 2008 judgment obtained for the family of Janice DiCosolo by attorneys James Orr, Michael Heygood and Charles Miller of the Dallas-based law firm Heygood, Orr & Pearson and Chicago attorney John Cushing.

Janice DiCosolo’s death on February 15, 2004 occurred while she was using a Duragesic® fentanyl patch that her doctor prescribed to reduce the pain she experienced as a result of a neurological condition called reflex sympathetic dystrophy. Duragesic is a patch containing a gel form of the powerful pain medication fentanyl.

During the course of the trial, Mrs. DiCosolo’s family argued that the defendants were aware of a long history of manufacturing defects related to the Duragesic® fentanyl patch which allowed the patch to leak fentanyl onto a patient’s skin, leading to extreme hypoventilation and death.  As attorney James Orr explained, “The Defendants knew their fentanyl patch was unreasonably dangerous and defective because it could leak fentanyl gel but continued to sell the product rather than change its design or their manufacturing processes.”

Janssen Pharmaceutica and ALZA Corp. ultimately recalled millions of Duragesic® fentanyl patches, including the very patch Janice DiCosolo was wearing at the time she died.  As introduced into evidence during the trial, a subsequent FDA investigation found numerous deficiencies in ALZA’s manufacturing practices and quality control policies and procedures.  These problems led to the manufacture and sale of thousands of defective, leaking patches, including the patch that caused the death of Janice DiCosolo.  In fact, toxicological testing conducted by the Cook County Medical Examiner’s office revealed that Janice DiCosolo had over fifteen times the amount of fentanyl in her bloodstream that a properly functioning Duragesic® fentanyl patch was designed to provide.

Following a three-week trial, a Cook County Circuit Court jury found Janssen Pharmaceutica and ALZA Corporation liable in the death of Janice DiCosolo and awarded her family $16,560,000 in damages.  With post-judgment interest, the judgment is now approximately $20 million.

Eric D. Pearson of Heygood, Orr & Pearson, appellate counsel for the DiCosolo family,  stated, “The Court of Appeals’ opinion is a total vindication of the jury’s verdict and a testament to the years of hard work that went into preparing, trying and defending on appeal this important case.  While the Defendants suggested on appeal that the verdict was the product of improper rulings by the trial court, misapplication of Illinois product liability law and overzealous advocacy by the lawyers, the Court of Appeals soundly rejected this argument, finding instead that ‘there was overwhelming evidence regarding the defective Duragesic patch causing [Janice] DiCosolo’s death.’  The court also rejected the Defendants’ argument that the jury’s verdict was excessive and the product of passion or prejudice, concluding that ‘we cannot say that the verdict in this case falls outside the range of fair and reasonable compensation or is so large it shocks the judicial conscience.’  We are very pleased with this result.”

It is expected that Defendants will attempt to appeal the case to the Illinois Supreme Court.  “We are confident that the Illinois Supreme Court will reject the Defendants’ appeal and that our clients will finally obtain the compensation they deserve for the needless loss of their wife and mother,” added attorney Michael Heygood.

The DiCosolo verdict is the second multi-million dollar fentanyl pain patch verdict obtained by Heygood, Orr & Pearson.  Attorney James Orr previously obtained a $5.5M verdict for the family of Adam Hendelson, a twenty-eight year old Florida man who died while using a Duragesic pain patch.  To date, Heygood, Orr & Pearson has tried more fentanyl cases to verdict than all other law firms in the U.S. combined. The firm continues to represent victims of defective fentanyl pain patches and is actively pursuing cases against Janssen Pharmaceutica, ALZA Corporation, Sandoz, Inc., Mylan, Inc., Watson Pharmaceuticals and other patch manufacturers.