United States District Court, D. Delaware
PATTERSON A. GREEN, Plaintiff,
JANSSEN PHARMACEUTICALS, INC., Defendant.
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.
ANDREWS, U.S. DISTRICT JUDGE.
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.
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,
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).
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).
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.
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).
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
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
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.
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