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