Chief Deputy Attorney General Fran Hughes said the case was "about the health and safety of West Virginians."
In 2004, Hughes' boss, Attorney General Darrell McGraw, filed suit against Janssen Pharmaceutica Products and its parent company, Johnson & Johnson, charging that the drug company had made false and misleading statements about two of its products.
The U.S. Food and Drug Administration had concluded in 2003 that certain types of drugs -- such as Janssen's antipsychotic medication Risperdal and narcotic pain-relief patch Duragesic -- were associated with an increased risk of diabetes.
The FDA required Janssen and other manufacturers to publicize these concerns to doctors prescribing their drugs. Janssen complied, while downplaying the risks.
The suit culminated in March 2009 with a summary judgment by Brooke Circuit Judge Martin Gaughan for nearly $4.5 million in civil penalties.
In a Sept. 24 editorial, as the state Supreme Court began hearing Janssen's appeal, we agreed with Hughes that the case was "about the health and safety of West Virginians," but argued that both were likely to suffer if the Supreme Court upheld the lower court's decision.
When Hughes and McGraw target drug manufacturers or other out-of-state companies for multimillion-dollar jackpot justice in the supposed public interest, those companies are incentivized to restrict or terminate operations in West Virginia – to the detriment of our citizens' health and safety.
But there was something fundamental at stake – the right of an American company to challenge the opinions of federal bureaucrats, to express its own opinion and to defend that opinion.
In a friend of the court brief filed during the appeal, the Washington Legal Foundation argued that Judge Gaughan violated Janssen's First Amendment rights by denying the company an opportunity to defend its statements. The supreme court agreed, reversing the lower court's order and remanding it for further proceedings.
The health and safety of West Virginians have been secured, for now, and so have our First Amendment rights.
