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Green v. Janssen Pharmaceuticals Inc.

United States District Court, D. Delaware

April 11, 2019


          Kelly E. Farnan, Christine D. Haynes (argued), Sara M. Metzler (argued), and Tyler E. Cragg (argued), RICHARDS, LAYTON & FINGER, PA., Wilmington, DE. Attorneys for Plaintiff.

          Michael P. Kelly (argued), Daniel J. Brown, and Hayley J. Reese, McCARTER & ENGLISH, LLP, Wilmington, DE; Heather C. Giordanella and Andrew P. Reeve, DRINKER BIDDLE & REATH LLP, Philadelphia, PA. Attorneys for Defendant.



         Presently before me are Defendant's Motion for Summary Judgment (D.I. 169), Defendant's Motion to Preclude Expert Testimony of Brendan Carroll, M.D. (D.I. 172), and Defendant's Motion to Exclude Certain Opinion Testimony of Dr. Mahyar Etminan (D.I. 175). The Parties have fully briefed the issues. (D.I. 170, 173, 176, 191, 192, 193, 201, 203, 205). I heard oral argument on March 7, 2019. For the reasons set out below, I will grant Defendant's Motion for Summary Judgment and I will dismiss Defendant's Daubert motions as moot.

         I. Background

         Plaintiff has struggled with severe mental illness throughout his life. (D.I. 192 at 6). He has been diagnosed with bipolar disorder, impulse control disorder, ADHD, post-traumatic stress disorder, and schizophrenia. (Id.). Doctors have prescribed him many medications, including Risperdal, [1] to treat these conditions. (Id.). Plaintiff was first prescribed Risperdal in March 2002 when he was seven years old. (Id.). He remained on the drug until 2007. (Id. at 6-7). Plaintiff also took an injectable form of Risperdal between November 2008 and December 2010. (D.I. 170 at 4). Plaintiffs Risperdal prescriptions came from at least ten different health care providers. (Id.). On April 3, 2008, Plaintiff was diagnosed with benign gynecomastia. (D.I. 192 at 7).

         Risperdal is FDA-approved for treatment of schizophrenia and bipolar disorder. (D.I. 170 at 5). Defendant is the manufacturer of brand name Risperdal. (D.I. 192 at 1). Risperidone is the generic name for Risperdal. (D.I. 170 at 2).

         Gynecomastia is a potential side effect of Risperdal. (D.I. 192 at 3-4). Increased levels of prolactin may also be a side effect and is allegedly connected to an increased risk of gynecomastia. (D.I. 176 at 8). Gynecomastia is the enlargement of the male breast gland due to a hormonal imbalance. Prolactin is a hormone which enhances breast development and initiates lactation in the human (typically female) body.

         Plaintiff filed this lawsuit on May 19, 2015. (D.I. 3). He pled seven claims against Defendant based on its marketing and sale of Risperdal: negligence (Count I), negligent misrepresentation (Count II), breach of warranty (Count III), breach of the implied warranty of merchantability (Count IV), breach of the implied warranty of fitness for a particular purpose (Count V), breach of express warranty (Count VI), and fraud by concealment (Count VII). (D.I. 47 at 3-7). He alleges that because of Defendant's conduct, he experienced gynecomastia, weight gain, and suicidal thoughts and actions. (D.I. 170 at 5).

         Defendant filed the present motions on October 12, 2018. It sought summary judgment on each count of the first amended complaint ("FAC"). (D.I. 47). In response to Defendant's summary judgment motion, Plaintiff voluntarily withdrew Counts III-VI. (D.I. 192 at 1 n.l). Plaintiff confirmed at oral argument that Count VII is also withdrawn. Thus, the only remaining Counts are negligence and negligent misrepresentation.

         II. Legal Standard

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the initial burden of proving the absence of a genuinely disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 411 U.S. 317, 330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986)). The burden on the moving party may be discharged by pointing out to the district court that there is an absence of evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323.

         The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing party] do not establish the absence ... of a genuine dispute . . .." Fed.R.Civ.P. 56(c)(1).

         When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49., If the non-moving party fails to make a sufficient showing on an essential element of its case with ...

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