United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
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.
Standard of Review
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).
Relevant Factual Background
following facts are drawn primarily from the parties'
statements of material facts, D. 66; D. 69,  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.
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.
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.
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. 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.
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.
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.