Testimony of Benita Pledger Feb. 6, 2015 (p. 33, 38, 47, 58-59, 65-66)
Benita Pledger took the stand on February 6, not long after Alex Gorsky was given the Joseph Wharton Leadership Award by the Wharton School’s New York alumni society.
Kline walked Austin’s mother through the story of how, despite his illness, her son—whom she described as “just such a blessing,” “a loving person”—is now able to navigate his tablet and guess the clues on “Wheel of Fortune” before she can.
Then he had her describe Austin’s self-consciousness about his breasts: “I mean, he can see me with my clothes on. He can see my husband without his shirt on. And he knows. … He just doesn’t have the capacity to ask me why.”
Before she explained how she and her husband had been so concerned about Austin’s medication that she called the company’s hotline to find out about the risks, but had not gotten an answer, Kline asked her what she knew about those risks:
Kline:
And did you ever at any time have any discussion or any thought in your head that my boy is developing actual breast tissue?
Pledger:
No. I thought it was the weight gain, and I thought that as long as I kept trying to help him with his weight and exercise, that’s all I could do. I would just have to fight the weight as much as possible. I did not know that his breasts were for any other reason than that.
Kline:
Okay. And did you at any time know that there was any increased risk, of any kind, of your son
developing what we in this courtroom have been calling gynecomastia?
Pledger:
No. I knew nothing of that. … I did not know boys could develop breasts or [if] it was a side effect from the medicine at all.
Kline:
If you knew that, would you have allowed your son to be on this drug?”
Pledger:
No.
Kline:
Can you tell that to us absolutely and
categorically? Pledger:
Absolutely not. I—I can—I can’t fight breast growth. I felt like
with the weight gain, we could exercise. … You can’t fight something like that. I
didn’t even know that was a possibility.
Kline then produced photos of Austin. The first was before he started taking Risperdal. Austin looked fit, arguably even lean. The second was a rare photo taken in 2005 of Austin coming out of the pool without a T-shirt. In the second photo, he looked much heavier; records indicated he had gained over 100 pounds. And his breasts were clearly visible. The third was a photo taken a few days before by Dr. Solomon, the new expert witness. Austin’s breasts were equally apparent.
“The pictures [of Austin] made an impression on all of us,” recalls the forewoman of the jury. “I still remember them.”
“The pictures, I think, made an impression on all of us,” recalls the forewoman of the jury. “I still remember them.”
Benita Pledger Cross-Examination Feb. 6, 2015 (p. 103, 33-35, 46-47, 58-59, 62 ) Diane Sullivan began her cross-examinationby getting Benita to agree that her son’s autism was a serious disability and that she had turned to Risperdal because “of the challenges you and your family faced.”
After a lunch adjournment, Sullivan asked Benita to describe how the drug had helped control Austin’s tantrums, which she was glad to do. But she was not as sanguine when Sullivan began reading from vivid school reports that described the tantrums and violent episodes Austin had before going on Risperdal.
Next came reports recording Austin’s improvement after starting his prescription. Then, Sullivan picked up another pile of reports describing his tantrums that were written after he had gone off the drug. She read from one after another, often loudly, recalls the jury forewoman.
To Benita, Sullivan’s reading of excerpts from the various reports was the kind of “cherry picking” that the Johnson & Johnson lawyer had accused Kessler of doing when he had focused on the negative clinical data. “All his [school reports] were similar,” she protested to Sullivan.
“Whether he was or was not on Risperdal. Every year I was always open and honest and I wanted them to know. They told me things and I told them. I never tried to candy-coat it. It’s hard. He had a hard time.”
Sullivan persisted: “And in 2009 [after he had stopped taking Risperdal] he was no longer welcome in school?”
“I never said that he was not a problem at school,” Benita answered.
“I have said the whole time he had problems. Risperdal did help. Abilify [a rival drug] helped. Geodon helped. But from kindergarten until the time they didn’t want him there anymore, he had a hard time. That is what the problem is. … There was no fix. Risperdal didn’t fix it, Abilify doesn’t fix it, and Geodon doesn’t fix it. And as he gets older, it’s better.”
Sullivan then showed the jury recent pictures of a smiling Austin Pledger. She got his mother to agree that he is “generally a happy kid.”
It was then that, with a closing flourish, Sullivan asked Benita the series of questions about how the first person to tell her about her son’s gynecomastia “wasn’t a doctor, it was a plaintiff’s law firm” through its 1-800 commercial.
“Yeah, it’s really a shame that a lawyer had to tell me about my son’s condition instead of the drug company or a doctor,” Benita Pledger later told me. “Like I’m supposed to be embarrassed about that? No doctor ever examined him with his shirt off. They thought he was just fat. So when she said that, it didn’t make me feel bad. ”
What bothered her more about Sullivan’s cross-examination was, she says, the way “Sullivan raised her voice when she read those school reports, and acted like she had caught me. It was like there was something I should be ashamed of. … Austin’s not some kind of juvenile delinquent. He’s an autistic young man.”
“I thought the mother was quite brave to subject herself to all of this,” recalls the jury forewoman. “I felt bad for her.”
In testimony, Benita Pledger described her son as “just such a blessing.” Emily Kassie