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J&J must pay $16.6 mil to Glenview family for pain-patch death
Bloomberg News
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Published: 11/17/2008 4:01 PM

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The Johnson & Johnson units that make and sell the Duragesic pain-killing patch must pay $16.6 million to the family of a Chicago-area woman who died of a drug overdose after using a defective one, a Chicago jury found.

The jury of six men and six women, in its second day of deliberations, decided today that Janice DiCosolo, 38, died in February 2004 because the patch she was wearing delivered a fatal dose of the narcotic fentanyl, the main ingredient in the Duragesic patch.

The lawsuit was filed by DiCosolo's husband, John. The couple had three children. The Duragesic-brand patch is made by Alza Corp., a Mountain View, California, company owned by New Brunswick, New Jersey-based Johnson & Johnson, the world's biggest maker of medical devices. The product was distributed by another J&J unit, Janssen Pharmaceutica. The verdict is the fourth pain-patch trial loss for the J&J units since 2006.

``We sympathize with the DiCosolo family over their loss,'' Greg Panico, a spokesman for Alza and Janssen, said in an e-mail. ``However, we disagree with the jury's verdict. We are considering our options for an appeal.''

The patches generated $1.16 billion in sales last year for Johnson & Johnson, making them the company's seventh best- selling product, according to data compiled by Bloomberg.

The DiCosolo jury started hearing evidence on Oct. 29, one day after a Sanford, Florida, panel awarded more than $13 million to the family of Susan Hodgemire, a 34-year-old mother of five who died after using a Duragesic patch in 2002.

`Elephant' in Room

``Fentanyl killed Janice DiCosolo. It's the elephant in the room,'' Jim Orr, a plaintiffs' lawyer, told the jury Nov. 14 as he summarized two weeks of testimony during his closing argument at the Cook County, Illinois, state court. ``It's obvious to everyone.''

Defense attorney Rita Maimbourg disagreed.

``This is a story that can be told from beginning to end without a leaking patch,'' she said during her closing argument. Orr and his colleagues produced ``no real evidence'' of a defect in the patches used by Janice DiCosolo before she died, Maimbourg said.

Citing the results of an autopsy, the defense lawyer said DiCosolo died from the interaction of at least five drugs, including fentanyl, found in her system by a Cook County coroner, Lawrence Cogan.

Powerful Patch

Fentanyl is a painkiller 100 times more powerful than morphine, Heygood told the panel. The patches, prescribed for people combating chronic pain, are to be worn for 72 hours and then discarded. Janice DiCosolo was found wearing one when she died.

Each patch contains enough fentanyl to kill 10 men weighing 300 pounds each, Orr said.

Janssen recalled one lot of Duragesic patches in February 2004, a day after DiCosolo died, because of improper sealing of the adhesive backing of the devices, defense lawyer David Sudzus wrote in a court filing. The patch worn by DiCosolo was from that lot, he said.

That patch wasn't defective, said Maimbourg, a partner in the Cleveland office of Tucker, Ellis & West.

Two of the jurors said that the money they awarded John DiCosolo and the couple's children was an average of higher and lower amounts suggested by members of the panel.

`Common Ground'

``It was a common ground,'' juror Bret Lessard, 22, of Tinley Park, Illinois, said of the panel's initial verdict for $18 million. From that amount, he and his colleagues subtracted 8 percent after finding Janice DiCosolo at least partly liable for her death because of the other medications found in her system.

``You assume some risk with as many drugs as you're taking,'' Lessard said, explaining the panel's consensus.

The jury forewoman, Peggy Rounsfull, 51, of Glenview, said, it was the fentanyl that appeared to have killed DiCosolo.

``There was no way of getting around the fact that she had too much fentanyl,'' Rounsfull said.

DiCosolo's husband, John, 45, a Cicero, Illinois police sergeant, wasn't in the courtroom when the verdict was read. His lawyer, John Cushing, said his client, though nervous during deliberations, was relieved to have had the opportunity to tell his wife's story.

``He didn't do this for money,'' Cushing said.

The jury's award was for the loss of Janice DiCosolo's ``love, guidance, care and affection,'' Cushing said. It wasn't compensation for economic damages, he said.

On Jan. 12, the J&J units face another pain-patch trial in Chicago, this time in federal court.

`Some Problems'

``Duragesic's got some problems,'' Cushing said.

Johnson & Johnson in July 2007 agreed to pay the family of a Florida man $2.5 million to resolve claims that Adam Hendelson, 28, had died after using one of the patches, three people with knowledge of the accord said. A jury had awarded the plaintiffs $5.5 million one month earlier.

In July 2006, a state court jury in Houston ordered Janssen and Alza in July to pay $772,500 to the family of a Texas woman who died after her patch leaked. The companies appealed that verdict.

The case is DiCosolo v. Janssen Pharmaceutica, 04L5351, Cook County, Illinois, Circuit Court, Law Division (Chicago).