State of La., Ex rel.charles C. Foti, Jr., Ag v. Janssen Pharmaceutica, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1148 consolidated with 06-1149

STATE OF LOUISIANA, EX REL. CHARLES C. FOTI, JR.,
ATTORNEY GENERAL
VERSUS
JANSSEN PHARMACEUTICA, INC., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NOS. 04-C-3967 & 04-C-3977
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and James T. Genovese,
Judges.

MOTION TO DISMISS APPEAL
GRANTED. APPEAL CONVERTED
INTO APPLICATION FOR
SUPERVISORY WRIT.

Patrick C. Morrow
James P. Ryan
Jeffrey M. Bassett
Post Office Drawer 1787
324 W. Landry
Opelousas, LA 70570
(337) 948-4483
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana, ex rel. Charles C. Foti, Jr., Attorney General

Kenneth W. DeJean
417 West University Avenue
Lafayette, LA 70502
(337) 235-5294
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana, ex rel. Charles C. Foti, Jr., Attorney General

Robert L. Salim
1762 Texas Street
Natchitoches, LA 71467
(318) 352-5999
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana, ex rel. Charles C. Foti, Jr., Attorney General

Kenneth T. Fibich
W. Michael Leebron
1401 McKinney, Suite 1800
Houston, TX 77010
(713) 751-0025
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana, ex rel. Charles C. Foti, Jr., Attorney General

Michael W. Perrin
K. Camp Bailey
Bailey Perrin Bailey, LLP
440 Louisiana, Ste. 2100
Houston, TX 77002
(713) 425-7100
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana, ex rel. Charles C. Foti, Jr., Attorney General

James B. Irwin
Monique Garsaud
Irwin, Fritchie, Urohart & Moore
400 Poydras Street, Suite 2700
New Orleans, LA 70130
(504) 310-2100
COUNSEL FOR DEFENDANT/APPELLANT:
Janssen Pharmaceutica, Inc.

Thomas Champion
Drinker, Biddle & Reath, LLP
500 Campus Drive
Florham Park, NJ 07932-1047
COUNSEL FOR DEFENDANT/APPELLANT:
Janssen Pharmaceutica, Inc.

Brian C. Anderson
Michael E. Stamp
1625 Eye Street, N.W.
Washinton, D.C. 20006
(202) 383-5300
COUNSEL FOR DEFENDANT/APPELLANT:
Janssen Pharmaceutica, Inc.

James Guglielmo
Guglielmo, Lopez, Tuttle, Hunter & Jarrell
Post Office Drawer 1329
306 East North Street
Opelousas, LA 70571-1299
(337) 948-8201
COUNSEL FOR DEFENDANT/APPELLANT:
Janssen Pharmaceutica, Inc.

PICKETT, Judge.

The plaintiff, Attorney General of the State of Louisiana, Charles C. Foti, Jr.,

moves to dismiss the devolutive appeal of the defendant, Janssen Pharmaceutica, Inc.,

as having been taken from a non-appealable, interlocutory judgment. For the reasons

assigned, we grant the motion to dismiss appeal, and we convert the appeal into an

application for supervisory writs.

This case arises out of the defendant’s manufacturing, marketing and sale of an

anti-psychotic drug called Risperdal. The plaintiff filed suit alleging that the

prescription Risperdal was not approved by the Food and Drug Administration for

pediatric use, although the defendant knowingly marketed and sold the drug for use

by children, causing the children severe injury and illness. The plaintiff further

alleged that the defendant marketed the drug for off-label adult use, causing injury

and illness. The plaintiff averred that the defendant continued engaging in unfair

trade practices, under Louisiana law, by promoting the off-label use of Risperdal for

pediatric and adult use.

The defendant filed a pleading styled a “Motion to Dismiss and Enjoin” with the

trial court, based on an allegedly unenforceable engagement letter between private

counsel and the Office of the Attorney General. The defendant moved to dismiss the

plaintiff’s original petition and first supplemental and amending petition. Further, the

defendant moved to enjoin the law firm of Morrow, Morrow, Ryan & Bassett, as

well as attorneys Kenneth W. DeJean, Patrick C. Morrow, James P. Ryan, Jeffrey M.

Bassett, Robert L. Salim, Kenneth T. Fibich and W. Michael Leebron, from

prosecuting this matter on behalf of the Office of the Louisiana Attorney General.

The aforementioned attorneys are the private counsel engaged by the Office of the

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Attorney General to handle litigation regarding the prescriptions Zyprexa and

Risperdal.

On July 14, 2006, the trial court denied the defendant’s Motion to Dismiss and

Enjoin. Notice of the judgment was mailed on July 17, 2006. The defendant timely

filed a motion and order for devolutive appeal on July 20, 2006.

The record in this appeal was lodged in this court on September 6, 2006. The

instant Motion to Dismiss Appeal was filed October 16, 2006.

The defendant’s Motion to Dismiss and Enjoin is focused on dismissing and

enjoining the private counsel hired by the plaintiff. This judgment does not decide

the merits of this suit. A judgment which does not decide the merits of a case is an

interlocutory ruling. La.Code Civ.P. art. 1841. An interlocutory judgment is

appealable only when expressly provided by law. La.Code Civ.P. art. 2083. No law

expressly provides for an appeal of this judgment. Accordingly, we dismiss

appellant’s appeal at its cost. La.Code Civ.P. art. 2162.

The instant matter is properly considered under our supervisory jurisdiction. The

motion for devolutive appeal was filed within the time delays for seeking supervisory

relief. In the interest of justice, we hereby convert this appeal into a writ application

for consideration on the merits. The appellant has already filed its appellate brief.

The appellee is given until November 13, 2006, by which to file any opposition brief,

if desired.

MOTION TO DISMISS APPEAL GRANTED. APPEAL CONVERTED INTO
APPLICATION FOR SUPERVISORY WRIT.

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