Acevedo v. Johnson & Johnson, & Janssen Research & Dev., LLC
| Decision Date | 30 September 2018 |
| Docket Number | No. 16-CV-11977-DLC,16-CV-11977-DLC |
| Parties | JESSIE ACEVEDO, Plaintiff, v. JOHNSON & JOHNSON, and JANSSEN RESEARCH AND DEVELOPMENT, LLC, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiff 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.
As 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.
The 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 ¶ 6.
In or 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.
In 2016, Acevedo stopped taking Risperdal but the tremors and gynecomastia did not decrease. Id. at ¶ 13. As a result of hisgynecomastia, 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.
The 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.
The 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.
In June 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.
On April 4, 2018, the court lifted the stay after efforts to obtain counsel for the plaintiff proved unsuccessful.
The 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) theplaintiff suffered emotional distress by virtue of the side effects he experienced.
The proposed amended complaint is more fulsome and asserts five claims. First, it alleges that the defendants willfully and intentionally failed to inform medical providers and the plaintiff about the side effects of Risperdal, in violation of M.G.L. 106 § 2-318 and M.G.L. c. 93A § 2. Second, it alleges that the defendants' failure to notify medical providers of the possibility that Risperdal could cause gynecomastia constitutes negligence, fraudulent concealment and fraud. Third, it alleges that the defendants manufactured a defective product where they made a drug that caused gynecomastia and tremors. Fourth, it alleges that the defendants fraudulently concealed Risperdal's side effects when they sold it. Finally, it alleges that the plaintiff suffered emotional distress as a result of suffering side effects from taking Risperdal.
Comparing the two complaints, both allege that the defendants failed to warn others of Risperdal's side effects, and both assert claims for emotional distress. Further, Counts II and IV of the proposed amended complaint allege fraudulent concealment and are essentially duplicative. Synthesizing the two pleadings andaccounting for duplication, they appear to assert the following five claims, referred to here as counts for ease and clarity:
Count I alleges that the defendants violated M.G.L. c. 106, § 2-318 and M.G.L. c. 93A, § 2 by willfully and intentionally failing to inform medical providers and the plaintiff of Risperdal's side effects;
Count II alleges that the defendants negligently failed to warn the plaintiff of Risperdal's potential side effects;
Count III alleges that the defendants fraudulently concealed Risperdal's potential side effects from providers and the plaintiff;
Count IV alleges based on Risperdal's side effects that the defendants defectively manufactured it; and
Count V alleges that the defendants inflicted emotional distress upon the plaintiff.
Under Fed. R. Civ. P. 15, a party may amend its pleading once as a matter of course within 21 days after serving it, or within 21 days after service of a responsive pleading or a motion filed under Fed. R. Civ. P. 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). In all other cases, a party may amend a pleading only with written consent of the opposing party or leave of the court. Fed. R. Civ. P. 15(a)(2). "The court should freely find leave when justice sorequires." Id. "The leave sought should be granted unless the amendment would be futile or reward undue delay." Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 117 (1st Cir. 2009). An amendment is considered futile if the proposed complaint would not survive a motion to dismiss. See, e.g., Kemper Ins. Co. v. Federal Express Corp., 115 F. Supp. 2d 116, 125 (D. Mass. 2000).
On a motion to dismiss, the court "must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). In order to survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level...on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555.
In light of the applicable standards, the court focuses its inquiry on whether any of the five claims, which in the aggregate reflect the substance of the original complaint as well as the amended claims the plaintiff seeks leave to include, states a viable claim for relief.
The plaintiff contends that leave to amend should be granted because the proposed amended complaint helps to flesh out and clarify the plaintiff's specific claims. However, even accepting that the proposed amended complaint improves upon the original complaint, and even assuming arguendo that the plaintiff has not unduly delayed in seeking to amend, or that the amendment would not unduly prejudice the defendants, the court finds that none of the claims asserts a valid claim for relief. The court therefore will dismiss the original complaint and deny the motion for leave to amend. With respect to two claims, however, the court will give the plaintiff one additional opportunity to seek to cure deficiencies noted here.
Count I alleges that the defendants willfully and intentionally failed to inform the plaintiff or his medical providers of the potential risks associated with taking Risperdal, in violation of M.G.L. c. 106, § 2-318 and M.G.L. c. 93A, § 2. Count I fails to state a claim because neither of these statutes provides the plaintiff with a cause of action here.
First, M.G.L. c. 106, § 2-318 does not provide for an independent cause of action. The statute provides in pertinent part that a "[l]ack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer,seller, lessor or supplier of goods to recover damages for breach of warranty, express or implied, or for negligence..." M.G.L. c. 106, § 2-318. As the comments to the statute note, the purpose of this statute is to give entities other than a buyer the same benefits of any warranty the buyer received. See Id., Uniform Commercial Code Comment, No. 2 (). The statute moreover is not germane to the present case because this is not a case where the defendants seek to escape liability for a breach of warranty or negligence claim on the ground that there was a lack of privity between the parties.
The second statute cited, M.G.L. c. 93A, § 2, does permit a plaintiff to bring an action for injury due to unfair or deceptive business practices, Edlow v. RBW, LLC, 688 F.3d 26, 39 (1st Cir. 2012), but the plaintiff cannot proceed under it here, for two reasons.
First, a plaintiff seeking to bring a Chapter 93A suit must first "submit a demand letter to defendants 30 days prior to filing a private action." McKenna v. Wells Fargo, NA, 693 F.3d 207, 217 (1st Cir. 2012). The demand letter, which is a...
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