By now, you’ve probably read reports of the $8 billion punitive verdict against Johnson & Johnson in an individual case alleging failure to warn that young men using its antipsychotic drug Risperdal could develop breasts. Robot-like, virtually every article about the verdict says that the verdict is likely to be reduced because it is disproportionate to the $680,000 award of compensatory damages.
But to say that the verdict is disproportionate is a bit like saying that Simone Biles is a very good gymnast. This exaction—imposed against a company whose drug was undeniably helpful to countless users—is grotesquely disproportionate both to the compensatory damages and to the gravity of the alleged misconduct.
In circumstances like these, a mere reduction to a modest multiple of the compensatory damages, as the press accounts appear to anticipate, is an inadequate remedy. It should be clear on its face that the amount of punitive damages—which, for procedural reasons, was imposed by a different jury from the one that found J&J liable and awarded compensatory damages—is the product of passion or prejudice, rather than calm deliberation.
No doubt, overheated rhetoric during closing argument is to blame, but whatever the cause, the only permissible remedy for a verdict infected by passion or prejudice is a new trial, not a remittitur.
Especially because there would be no need to retry the underlying liability finding and award of compensatory damages, it should not be a heavy lift for the courts of Pennsylvania to order this remedy. Whether they ultimately do so will be the subject of a future post.