PHILADELPHIA — Johnson & Johnson’s motion to bar a doctor’s expert testimony in a Risperdal case has been ruled an “unfair surprise” by the presiding judge. The lawsuit, which is filed in Philadelphia, alleges that Johnson & Johnson and Janssen Pharmaceuticals were aware of the health risks of their drug Risperdal and that the plaintiff, who took the drug for five years beginning when he was just seven, developed gynecomastia, or male breast growth, as a result of using the drug. There are many other cases against the Risperdal manufacturers that are currently pending with similar claims alleging that the defendants knew of the health risks of their drug but still promoted its off-label use.

In this case, the expert witness, Dr. David Goldstein, was expected to testify that Risperdal was the cause of the breast development of the plaintiff, who is now 20 years old. Johnson & Johnson sought to effectively prevent this testimony by asserting that the doctor, who is licensed to practice in Missouri, had broken a law by examining the plaintiff in Alabama, where he was not licensed. The defendants also claim that there was no other licensed doctor present during the examination. Although counsel for Johnson & Johnson maintain that they had only just found out about the location of the examination before filing the motion, Judge Ramy Djerassi denied the motion, ruling that it was a surprise tactic that was filed too late. Johnson & Johnson had also filed a motion to get Dr. Goldstein’s testimony barred in May, but their motion was denied then as well. This time, the defendants have protested that Dr. Goldstein’s opinion should not be admissible in court because it was formed from an illegal act. However, in his decision, the judge referenced an Alabama statute that permits doctors who are unlicensed in Alabama to practice there within a 10-day window without having a license.

As a result of the judge’s ruling on this motion, either Dr. Goldstein or a different expert witness will be allowed to offer expert testimony in the trial. J&J is expected to move for a mistrial if a different doctor testifies instead of Goldstein because their defense case has been structured around Goldstein’s testimony.

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