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Jackson v. Johnson & Johnson and Janssen Pharmaceuticals, Inc.

United States District Court, D. Massachusetts

September 5, 2018

EMMANUEL JACKSON, Plaintiff
v.
JOHNSON & JOHNSON AND JANSSEN PHARMACEUTICALS, INC., Defendants.

          MEMORANDUM AND ORDER

          DENISE J. CASPER UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff Emmanuel Jackson (“Jackson”) has filed this lawsuit against Defendants Johnson & Johnson and Janssen Pharmaceuticals, Inc., (“Defendants”) alleging negligence (Count I), breach of express warranty (Count II), strict products liability (Count III), fraudulent concealment (Count IV), strict products liability - failure to warn (Count V), negligent failure to warn (Count VI), negligent misrepresentation (Count VII), negligent infliction of emotional distress (Count VIII), breach of warranty (Count IX), and unfair and deceptive practices (Count X). D. 1-1. Defendants move for summary judgment on all counts. D. 64. For the reasons stated below, Defendants' motion for summary judgment is ALLOWED.

         II. Standard of Review

         “Summary judgment is properly granted if the movant can demonstrate that ‘there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.'” Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 69 (1st Cir. 2016) (quoting Fed. R. Civ. P.56(a)). “A genuine issue is one that can ‘be resolved in favor of either party' and a material fact is one which ‘has the potential of affecting the outcome of the case.'” Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013) (quoting Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011)). If the movant meets its burden, the non-moving party “must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “Neither party may rely on conclusory allegations or unsubstantiated denials, but must identify specific facts derived from the pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate either the existence or absence of an issue of fact.” Magee v. United States, 121 F.3d 1, 3 (1st Cir. 1997). In conducting this inquiry, the Court “view[s] the record in the light most favorable to the non-movant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Relevant Factual Background

         The following facts are drawn primarily from the parties' statements of material facts, D. 66; D. 69, [1] and the exhibits filed by Jackson, D. 70, and are undisputed unless otherwise noted. Jackson was first prescribed and regularly took Risperdal starting on or about February 4, 1999 (when he was eleven years old), until January 2001 (when he was thirteen years old). D. 66 ¶ 15; D. 69 ¶¶ 1, 2, 4. This antipsychotic medication was initially prescribed by Dr. Christopher Bellonci for treatment of Jackson's psychiatric conditions. D. 69 ¶ 4. Dr. Bellonci is one of the three experts disclosed by Jackson. D. 67-2 at 2. Prior to taking Risperdal, Jackson was prescribed several other medications to treat his behavioral and psychotic disorders including Trilafon, Congentin, Lithium, Ritalin, Adderall, Depakote and Nortriptyline. D. 67-3 at 7; D. 66 ¶ 25. According to Jackson, Risperdal caused him to become obese, D. 69 ¶¶ 5-7, 9, 16; D. 67-6 at 8, diabetic, D. 69 ¶¶ 10-12, 16, to develop gynecomastia (i.e., breast enlargement), D. 69 ¶¶ 14, 16, and to develop high prolactin levels, D. 69 ¶¶ 15-16. On August 3, 1999, approximately six months after Jackson began taking Risperdal, Dr. Bellonci noted that “[Jackson] has gained a lot of weight.” D. 70-10 at 2. Diagnosed as obese in November 2000, Jackson was referred to Children's Hospital for “new onset diabetes patient management and education.” D. 70-11 at 4. Dr. Bellonci, testified, however, that despite a correlation between Risperdal and Jackson's weight, it is plausible that the weight gain could have derived from the effect of Jackson ceasing to take Adderall, D. 67-3 at 10, although Jackson reports that this medication has a side effect of appetite suppression, D. 66 ¶ 21.

         On November 6, 2000, Jackson was admitted to Rhode Island Hospital due to increased glucose levels. D. 70-13 at 2. During this stay, hospital records indicated that “it is possible that [Jackson] has gained a lot of [weight] from Risperdal (a known common [side effect]) and question whether this [weight] gain has contributed to the onset of [diabetes mellitus].” D. 70-14 at 3. On November 11, 2000, a subsequent notation further indicated that Risperdal is known for causing weight gain and also that Jackson had gained fifty pounds during the previous year. D. 70-12 at 5. Jackson was discharged from Rhode Island Hospital on November 15, 2000 with a diagnosis of Type II diabetes. D. 70-13 at 2-3. The discharge notes specified that Jackson was “presumed to have diabetes type II given [his weight] and given [his] negative antibody levels and the high insulin levels.” Id. at 3. Dr. M. David Kurland, one of Jackson's treating physicians, but not one of his disclosed experts, later suggested in a medical document, dated February 26, 2001, that due to Jackson's weight and enlarged breasts, Jackson should switch to Seroquel, which has less of an appetite-increasing effect than Risperdal and does not produce endocrinal changes, which can be a side effect of Risperdal. D. 70-7 at 2. Dr. Kurland further noted that Jackson's weight affected his Type II diabetes and that Jackson “complained of breast enlargement and breast pain in November and was found to have a prolactin level of 21.4, which is high for his age and gender.” Id. After switching from Risperdal to Seroquel, Jackson's weight and prolactin levels decreased. Id.

         Defendants dispute, however, that Risperdal caused Jackson's injuries given that there are multiple alternative causes of Jackson's conditions, “including puberty, obesity, and certain medications.” D. 66 ¶ 16; 67-4 at 8. According to Dr. Bellonci, one of Jackson's treating physicians, an 11-year old child “would certainly be gaining weight as [he] grew.” D. 67-3 at 15-16. Dr. Bellonci further testified that several years ago “side effects were thought to be less in second generation antipsychotics like Risperdal.” D. 67-3 at 4. Additionally, Dr. Charlotte Boney, another of Jackson's treating physicians, testified that gynecomastia, is “really common in boys starting puberty” and also that a “good 50 percent of boys in early puberty develop some breast tissue.” D. 67-9 at 3-4. Dr. Boney also testified that “[a]nytime there is a risk of obesity, there is a risk of gynecomastia.” Id. at 4. Gynecomastia is listed as a side effect not only of Risperdal, D. 67-4 at 7, but also of Trilafon, D. 67-7 at 4, one of the medications Jackson ingested prior to Risperdal, D. 67-3 at 7; D. 66 ¶¶ 25-26, and of Seroquel, D. 67-10 at 3, which Jackson was also later prescribed. Dr. Victoria Wolfson, another one of Jackson's treating physicians and one of Jackson's experts, testified that she never diagnosed Jackson with gynecomastia or diabetes, D. 67-4 at 18, and that there are multiple causes of diabetes, D. 67-4 at 18, 22. Dr. Wolfson further testified that even if she were aware gynecomastia was a frequent side effect of Risperdal, she would still have prescribed it to Jackson. D. 67-4 at 20.

         Jackson's antipsychotic medications were administrated through physician submissions to the Suffolk County Probate Family Court (the “Probate Court”) since Jackson was a ward of the Department of Child and Family Services (“DCF”), formerly DSS.[2] D. 66 ¶ 12; D. 69 ¶¶ 2, 3. Jackson's current counsel has indicated that since his March 2017 appearance in this case, “both Jackson's counsel and Defendants' counsel sought to gain access to Jackson's probate file and to the physicians who prepared Jackson's Roger's petitions.” D. 70 ¶ 20. The Probate Court denied these requests for access to the probate file as a result of the “sensitive nature of the probate file” even when Jackson initially requested such access. Id. ¶¶ 21, 22. On May 17, 2017, Jackson moved for inspection of records in the Probate Court. D. 70-4 at 2. On April 3, 2018, after the motion was granted, Jackson was permitted to view, but not copy, his file at the Probate Court. D. 70 ¶¶ 23-24. According to Jackson, at this point, “it became apparent that the parties [] [were] working with an incomplete record in this matter” given that “[c]ertain additional Roger's petitions and/or missing pages of petitions already obtained through discovery, appear[ed] to [have been] present in the probate file.” Id. ¶ 25. Jackson filed a motion in Probate Court to copy files together with an affidavit of support on April 3, 2018. D. 70-6 at 2. As of July 5, 2018, the Probate Court had not ruled on Jackson's motion, D. 70 ¶ 27, and there was no further update of this matter provided at the summary judgment hearing on July 25, 2018, D. 74.

         IV. Procedural History

         On October 26, 2015, Jackson initiated this lawsuit in Norfolk Superior Court. D. 1-1. Defendants removed the case to this Court on December 1, 2015. D. 1. As part of the initial scheduling order in this case, Jackson's expert disclosures were due by October 21, 2016. D. 26. The Court granted a joint motion for extension of time to complete discovery, D. 28, extending Jackson's expert disclosure deadline until March 23, 2017, D. 29. On February 2, 2017, the Court allowed the motion of Jackson's original counsel to withdraw. D. 34. While awaiting the entry of successor counsel, the Court extended Jackson's expert disclosure deadline to June 30, 2017. D. 38. After Jackson's current attorney entered his appearance, D. 42, the Court allowed the parties' joint motion to extend pretrial deadlines by sixty days, 4, extending Jackson's expert disclosure deadline to August 31, 2017, D. 44. On August 2, 2017, the parties jointly moved to extend discovery, which the Court again granted until November 13, 2017, D. 49. Jackson subsequently filed an emergency motion for an extension of time to file expert disclosures, D. 53, which Defendants did not oppose provided that staggered expert disclosure dates for the parties remain, that any extension only apply to expert discovery and dispositive motions and that either party could proceed with additional medical depositions previously noticed if they decided to do in light of the expert disclosures. D. 54. The Court granted Jackson's motion, extending his expert disclosure deadline to February 14, 2018, maintaining a staggered defense expert disclosure date one month later (March 14, 2018) and resetting the close of expert discovery for April 13, 2018. D. 55.

         Despite the multiple extensions, Jackson did not serve his expert disclosures (disclosing three treating physicians as experts) on Defendants until February 27, 2018, after the deadline of February 14, 2018. D. 67-2. In light of this delay, Defendants and Jackson moved, in relevant part, for further modification of the schedule, to allow Defendants to take the deposition of Dr. Wolfson, one of these treating physicians. D. 59. The Court granted the parties' joint motion and gave Defendants until May 14, 2018 to make their expert disclosures and until June 14, 2018 to file a summary judgment motion. D. 60. Given Dr. Wolfson's unavailability, the Court granted a further motion extending Defendants' expert disclosure until June 30, 2018, D. 63. On June 14, 2018, Defendants moved for summary judgment on all claims. D. 64. Jackson responded to the motion on July 5, 2018, contending that the Court should deny the motion, or allow him more time for expert discovery, since he claimed for the first time that such discovery was incomplete. D. 68. The Court heard oral argument on these matters on July 25, 2018, taking the Defendants' summary judgment motion and Jackson's opposition to same under advisement. D. 74.

         V. ...


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