United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
L. CABELL, U.S.M.J.
Jessie Acevedo has sued the manufacturers of the drug
Risperdal after he took the drug and reportedly suffered
serious side effects. The defendants, Johnson & Johnson
(“J&J”) and JANSSEN Research and Development
(“Janssen”), moved to dismiss the complaint and
the plaintiff subsequently moved to amend. (Dkt. Nos. 13, 29,
51). Those motions are now pending before the court. For the
reasons explained below, the defendants' motions to
dismiss will be granted and the plaintiff's
motion to amend will be denied. However, the
plaintiff will be permitted to attempt to re-plead two of his
claims provided he can assert specific facts to show the
claims are viable.
Facts as Stated in the Original Complaint
alleged in the original complaint, the plaintiff is an inmate
at the Old Colony Correctional Center in Bridgewater,
Massachusetts. He at some point was prescribed Risperdal, an
anti-psychotic drug. He subsequently developed breasts as a
result of taking the drug and contends that the defendants
failed to warn him of the drug's side effects. Complaint
at pgs. 1-2.
Additional Facts as Stated in the Proposed Amended
proposed amended complaint asserts additional facts and
allegations. As alleged therein, J&J and Janssen
developed and sold Risperdal. Amend. Compl. at ¶ 2. In
or around 2007, Acevedo was prescribed Risperdal in
connection with a diagnosed personality disorder.
Id. at ¶ 4. Subsequently, Acevedo experienced
weight gain, a decreased sex drive, tremors, and increased
breast tissue, that is, gynecomastia. Id. at ¶
around May 2016, Acevedo saw a doctor regarding his mental
health disorder and that doctor told him about
Risperdal's side effects. The doctor told Acevedo that it
was the defendants who informed the doctor of the drug's
potential side effects. These disclosed side effects did not
include gynecomastia. Id. at ¶ 9-10.
2016, Acevedo stopped taking Risperdal but the tremors and
gynecomastia did not decrease. Id. at ¶ 13. As
a result of his gynecomastia, Acevedo was subject to taunting
inside and outside of prison and suffered from severe
depression, suicidal ideation and thoughts of
self-mutilation. Id. at ¶ 17.
plaintiff filed an original complaint on September 29, 2016,
and J&J and Janssen moved to dismiss on January 31 and
March 24, 2017, respectively.
court subsequently issued an order to show cause when the
plaintiff failed to respond and the plaintiff by letter dated
May 31, 2017 informed the court that he wanted to prosecute
his claims but was unsure how to proceed.
2017 the court stayed the case in order to see if counsel
could be obtained to assist the plaintiff. In the interim, on
November 20, 2017, the plaintiff moved for leave to amend the
complaint. On December 31, 2017, the defendants opposed the
motion to amend.
April 4, 2018, the court lifted the stay after efforts to
obtain counsel for the plaintiff proved unsuccessful.
The Original Complaint
original complaint appears to assert two claims. It appears
to allege that (1) the defendants negligently failed to warn
the plaintiff of the side effects of Risperdal, and (2) the
plaintiff suffered emotional distress by virtue of the side
effects he experienced.
The Proposed ...