Arkansas Attorney General Dustin McDaniel is asking the state’s Supreme Court to reconsider a ruling that overturns a $1.2 billion damage award earlier issued against Johnson & Johnson and its subsidiary Janssen Pharmaceuticals for allegedly marketing its antipsychotic drug Risperdal illegally.

The ruling, issued on March 20, was based on a legal argument that was not raised by any of the contending sides. McDaniel argued that the high court is not allowed to raise an issue for the first time during oral arguments. He pointed out that one of the justices asked a key question that served as the basis of the high court’s decision to overturn the Risperdal settlement.

The Arkansas Supreme Court ruled, in a 4-3 decision, that the Arkansas Code Revision Commission incorrectly codified the Medical Fraud Claims Act and that it cannot apply to Risperdal. A letter from the Food and Drug Administration (FDA) was wrongfully admitted as evidence during the trial, the high court argued.

This decision by the Supreme Court tossed an April 2012 award after a trial in Pulaski County Circuit Court which resulted in a $1.2 billion Risperdal settlement against Johnson & Johnson and its subsidiary Janssen Pharmaceuticals. The judge’s decision said that the makers of Risperdal violated the Medical Fraud False Claims Act by marketing the drug for uses not approved by the FDA and for downplaying its health risks.

It should be noted that another verdict involving a $257 million Risperdal settlement obtained by the state of Louisiana in 2010 was overturned by the Supreme Court in January 2014. There are other Risperdal lawsuits of the same nature pending in the states of Texas and South Carolina.

In November 2013, Johnson & Johnson reached a separate Risperdal settlement for $2.2 billion with the federal government for Risperdal illegal marketing claims. The settlement came after investigation by the Department of Justice (DOJ) that found that Risperdal were being promoted for uses that were not approved by the FDA. They were also accused of giving kickbacks to doctors and pharmacists who can push the drugs for them.

Johnson & Johnson and Janssen Pharmaceuticals continue to face a growing number of Risperdal lawsuits alleging that the drug increases the risk for young boys to develop a medical condition known as gynecomastia, causing the breast growth in males. The are instances where plaintiffs have alleged that boys developed breasts which measures 38D cup size after using the medication.