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Trower v. Janssen Pharmaceuticals, Inc.

United States District Court, D. Delaware

April 11, 2019

LAMAR A. TROWER, Plaintiff,

          Kelly E. Farnan, Christine D. Haynes (argued), Sara M. Metzler (argued), and Tyler E. Cragg (argued), RICHARDS, LAYTON & FINGER, P.A., 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. 155), Defendant's Motion to Preclude Expert Testimony of Brendan Carroll, M.D. (D.I. 158), and Defendant's Motion to Exclude Certain Opinion Testimony of Dr. Mahyar Etminan (D.I. 161). The Parties have fully briefed the issues. (D.I. 156, 159, 162, 177, 178, 179, 187, 189, 191). 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 suffers from a variety of serious mental illnesses. (D.I. 178 at 2). He has been diagnosed with ADHD, conduct disorder, oppositional defiant disorder, generalized anxiety disorder, major depressive disorder, PTSD, impulse control disorder, antisocial personality disorder, mild mental retardation, bipolar disorder, and schizophrenia. (Id.). Doctors have prescribed him Risperdal, [1] Haldol, Doxepin, Prozac, Depakote, Seroquel, Thorazine, Cylert, Clonidine, Elavil, Lexapro, Mellaril, Trazadone and Vistaril to treat these conditions. (Id.). Plaintiff was prescribed Risperdal from February 2011 through June 2011; October 2011 through February 2012; and August 2012 through August 2013. (Id.). Plaintiff allegedly discontinued use of Risperdal in early 2014. (Id. at 3).

         Risperdal is FDA-approved for treatment of schizophrenia and bipolar disorder. (D.I. 156 at 5 n.2). Defendant is the manufacturer of brand name Risperdal. (D.I. 178 at 4). Risperidone is the generic name for Risperdal. (D.I. 156 at 5). Other drug manufacturers, such as Zydus Pharmaceuticals (USA), Inc., manufacture risperidone. (Id.).

         Gynecomastia is a potential side effect of risperidone. (D.I. 178 at 5-7). Increased levels of prolactin may also be a side effect and is allegedly connected to an increased risk of gynecomastia. (D.I. 162 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 March 4, 2016. (D.I. 1). 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. 29 at 4-7). He alleges that because of Defendant's conduct, he developed gynecomastia, breast pain, and discomfort, including hard nipples. (D.I. 156 at 6).

         Defendant filed the present motions on October 12, 2018. It sought summary judgment on each count of the second amended complaint. (D.I. 29). In response to Defendant's summary judgment motion, Plaintiff voluntarily withdrew Counts III-VII. (D.I. 178 at 1 n.l). Thus, the only Counts remaining 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., 477 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, AI6 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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