SC Risperdal Case is a Trove of Unperserved Appellate Issues

Parties in South Carolina often raise appellate issues that they failed to preserve in the trial court. Until last month, four error-preservation violations were the most I had seen discussed in a single case. Then came State v. Ortho-McNeil-Janssen Pharmaceuticals, Op. No. 27502 (S.C. Sup.Ct. filed February 25, 2015)(Shearouse  Ad.Sh. 8). In Janssen, the Supreme Court discussed nine error-preservation violations and footnoted even more.

 Janssen is an Unfair and Deceptive Trade Practices action that the Attorney General of South Carolina brought against the manufacturer of Risperdal, a prescription antipsychotic drug. The jury found the drug maker liable and the trial court assessed civil penalties totaling $327,073,700. On appeal, the Supreme Court reduced the judgment to $136,025,400.

Opening Statement and Closing Arguments

To challenge an opening statement or closing argument on appeal, you must object immediately; explain exactly what comments you are complaining about and why; and get the trial court to make a distinct ruling. Your appeal is then limited to the basis of the objection that you made at trial.

HeadacheJanssen violated this two ways. At the beginning of trial, it made a continuing objection based on relevance, wrongly believing that it could make a more specific objection later. It then argued on appeal that the State’s opening statement and closing argument were inflammatory and unduly prejudicial.

This violated the rules that objections must be contemporaneous and that one may not shift ground on appeal.

Admitting Evidence

To appeal admitted evidence, at trial you must object contemporaneously and specifically, and then get a ruling on the objection.

Janssen violated this rule three ways. It first challenged evidence on appeal without having stated at trial why it objected. It also argued on appeal that other evidence was hearsay and unduly prejudicial when at trial it only argued relevance. And because hearsay and undue prejudice were not argued at trial, the trial court never ruled on issues that Janssen raised.

Excluding Evidence

To appeal excluded evidence, you must make a timely proffer of what the excluded witness’s testimony would have been.

Janssen violated this rule by waiting almost a month after the trial court excluded its expert’s testimony before it made an offer of proof. The Supreme Court concluded that this was too late.

Grounds for JNOV 

To appeal the denial of a motion notwithstanding the verdict, you must have earlier raised the particular ground in your motion for a directed verdict.  Issues not raised in the directed verdict motion are not before the trial court on JNOV, and so are not preserved for appeal from the denial of a JNOV.

Janssen violated this rule twice. It argued on appeal that the First Amendment and the implied preemption doctrine entitled it to a jnov even though it never raised either ground in its motion for a directed verdict.

The Supreme Court added that Janssen’s implied preemption argument also differed substantially from the argument it made in the trial court, again triggering the rule against arguing one ground in the trial court and another on appeal.

Get a specific ruling 

To appeal a ruling, you need to identify the specific ruling you are appealing. Janssen violated this arguing for a statutory exemption from liability — without identifying a ruling on the issue that it claimed as error.

Miscellaneous Violations

The Supreme Court lastly footnoted other error-preservation violations, including the failure to object contemporaneously; the failure to object specifically; raising new issues of the first time on appeal; and raising conclusory statements without supporting authority.

Concluding Thoughts

Thankfully for Janssen’s trial counsel, the Supreme Court made a point to say that none of the unpreserved errors had merit.  It is much easier to tell a client that the client would not have won anyway than have the Supreme Court suggest that a proper objection at trial would have saved the client over $136 million dollars.


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