Trisvan v. Heyman

Citation305 F.Supp.3d 381
Decision Date30 March 2018
Docket Number16–CV–00084 (MKB)
Parties John TRISVAN, Plaintiff, v. Tom HEYMAN, President, Johnson and Johnson Development Corporation; Alex Gorsky, Chairman and CEO, Johnson and Johnson; Joaquin Duato, Chairman; Johnson and Johnson Development Corpoation; Janssen Pharmaceuticals; Sir Phillip Hampton, Chairman, Glaxosmithkline; Andrew Witty, CEO, Glaxosmithkline; GlaxoSmithKline, LLC, Defendants.
CourtU.S. District Court — Eastern District of New York

John Trisvan, Brooklyn, NY, pro se.

Thomas Philip Kurland, Patterson Belknap Webb & Tyler, New York, NY, Stephanie Shreiner McGraw, Shook, Hardy & Bacon LLP, Houston, TX, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge

Plaintiff John Trisvan, proceeding pro se , commenced the above-captioned action1 on November 23, 2015 against Defendants Tom Heyman, Alex Gorsky, Joaquin Duato, Sir Phillip Hampton, and Andrew Witty, alleging liability for their role in the manufacturing and marketing of pharmaceutical drugs Risperdal

and Wellbutrin. (Compl., Docket Entry No. 1.) Plaintiff alleges that Risperdal and Wellbutrin caused him weight gain, gynecomastia, hypertension, and liver damage. (Id. ) On April 14, 2017, Plaintiff filed an Amended Complaint adding Johnson and Johnson Development Corporation, Janssen Pharmaceuticals, and Glaxosmithkline, LLC as Defendants.2 (Am. Compl., Docket Entry No. 34.)3 While Plaintiff has not alleged that Defendants have violated any specific laws, the Court interprets the Amended Complaint to raise New York state law claims for failure to warn, design defect, and fraud.

Defendants now move to dismiss the Amended Complaint for lack of personal jurisdiction, and failure to state a claim pursuant to Rules 12(b)(2) and (6) of the Federal Rules of Civil Procedure.4 (GSK Defs. Second Mot. to Dismiss ("GSK Second Mot."), Docket Entry No. 44; GSK Defs. Mem. in Supp. of GSK Second Mot. ("GSK Mem."), Docket Entry No. 44–1; Janssen Defs. Second Mot. to Dismiss ("Janssen Second Mot."), Docket Entry No. 47; Janssen Defs. Mem. in Supp. of Janssen Second Mot. ("Janssen Mem."), Docket Entry No. 48.) For the reasons discussed below, the Court grants Defendants' motions to dismiss in their entirety.

I. Background

The facts alleged in the Amended Complaint are assumed to be true for the purpose of deciding Defendants' motions. Because Plaintiff is proceeding pro se , the Court also considers and assumes the truth of Plaintiff's factual allegations in his opposition to the motions. See, e.g. , Walker v. Schult , 717 F.3d 119, 122 n.1 (2d Cir. 2013) ("A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion."); Small v. Ortlieb , No. 10-CV-1616, 2012 WL 3229298, at *1 (E.D.N.Y. Aug. 6, 2012) ("[A]s part of this [c]ourt's duty to construe pro se pleadings liberally, the [c]ourt will take account of all the facts contained in both [plaintiff's] amended complaint and his opposition papers." (citation omitted) ).

a. Plaintiff's medical history

In 1999, at the age of twenty-three, Plaintiff was diagnosed with depression and psychosis

. (Am. Compl. 3.) On or around 2001, Plaintiff was prescribed the medications Risperdal and Wellbutrin by his then-psychiatrist to treat the symptoms of depression and psychosis. (Id. at 4.) Within two years of taking these medications, Plaintiff developed gynecomastia, hypertension, and gained almost 100 pounds of weight. (Id. )

On September 14, 2015, Plaintiff received test results indicating he had an enlarged liver and was in the early stages of fatty liver

disease. (Id. ) Plaintiff's medical physician informed him that the medication he was being prescribed by his then-psychiatrist was known to cause liver damage. (Id. ) Plaintiff had never previously been informed of any potential side-effects of taking Risperdal and Wellbutrin. (Id. )

b. Development and marketing of Risperdal

and Wellbutrin

In 1994, the Janssen Defendants began manufacturing Risperdal

for public use.5 (Id. ) Over the years, the Janssen Defendants have agreed to settlements with state governments and the United States Department of Justice ("DOJ") for improper promotion of off-label uses of Risperdal

. (Pl. Opp'n to Defs. Mot. ("Pl. Opp'n") 3, 23–33, Docket Entry No. 43.) While Risperdal had only been FDA-approved for the treatment of schizophrenia and "Bipolar I Disorder" in adults, the Janssen Defendants promoted the product for "unapproved uses, including dementia in elderly patients, schizophrenia and bi-polar disorder in children and adolescents, and depression ...." (Id. at 33.) The settlements focused on conduct that took place between January 1, 1999 and December 31, 2005. (Id. at 30.) Individual Janssen Defendants Gorsky, Duato, and Heyman joined the company in 1988, 1989, and 2008, respectively. (Id. at 2–3.)

From January of 1999 to December of 2003, the GSK Defendants promoted Wellbutrin

, "approved at that time only for Major Depressive Disorder, for weight loss, the treatment of sexual dysfunction, substance addictions and Attention Deficit Hyperactivity Disorder, among other off-label uses." (Id. at 11.) To promote these off-label uses, the GSK Defendants, inter alia , "paid millions of dollars to doctors to speak at and attend meetings, ... [and] sham advisory boards." (Id. ) As a result of these and other practices, GSK agreed to a settlement with the DOJ and various state governments because "its labeling did not bear adequate directions for ... off-label uses." (Id. at 12.) Individual GSK Defendants Witty and Hampton both served as executives of the company "during the time Plaintiff was injured." (Am. Compl. 5.)

II. Discussion
a. Standards of Review

i. Rule 12(b)(2)

On a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, "[a] plaintiff bears the burden of demonstrating personal jurisdiction over a person or entity against whom it seeks to bring suit." Troma Entm't, Inc. v. Centennial Pictures Inc. , 729 F.3d 215, 217 (2d Cir. 2013) (citing Penguin Grp. (USA) Inc. v. Am. Buddha , 609 F.3d 30, 34 (2d Cir. 2010) ); see also Thackurdeen v. Duke Univ. , 660 Fed.Appx. 43, 44–45 (2d Cir. 2016) ("In opposing a motion to dismiss for lack of personal jurisdiction, plaintiffs bear the burden of establishing that the court has jurisdiction over defendants." (citations, alterations and internal quotation marks omitted) ). The plaintiff's burden is governed by a "sliding scale," which "varies depending on the procedural posture of the litigation." Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A. , 722 F.3d 81, 84 (2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken–Overpelt, S.A. , 902 F.2d 194, 197 (2d Cir. 1990) ). If a defendant challenges personal jurisdiction by filing a Rule 12(b)(2) motion, "the plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction." Id. at 85 (quoting Ball , 902 F.2d at 197 ); Eades v. Kennedy, PC Law Offices , 799 F.3d 161, 167–68 (2d Cir. 2015) (same). Prior to discovery, a plaintiff need only plead "an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant." Dorchester , 722 F.3d at 84 (quoting Ball , 902 F.2d at 197 ); Chirag v. MT Marida Marguerite Schiffahrts , 604 Fed.Appx. 16, 19 (2d Cir. 2015) ("A prima facie case requires non-conclusory fact-specific allegations or evidence showing that activity that constitutes the basis of jurisdiction has taken place." (citing Jazini v. Nissan Motor Co. , 148 F.3d 181, 185 (2d Cir. 1998) ) ). After discovery, the plaintiff's prima facie showing must be factually supported. Dorchester Fin. Sec. , 722 F.3d at 85 (quoting Ball , 902 F.2d at 197 ).

The court must "construe the pleadings and any supporting materials in the light most favorable to the plaintiffs." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL , 732 F.3d 161, 167 (2d Cir. 2013) (citing Chloé v. Queen Bee of Beverly Hills, LLC , 616 F.3d 158, 163 (2d Cir. 2010) ); Grundstein v. Eide , 598 Fed.Appx. 45, 46 (2d Cir. 2015) (citing DiStefano v. Carozzi N. Am., Inc. , 286 F.3d 81, 84 (2d Cir. 2001) ). However, the court need not "accept as true a legal conclusion couched as a factual allegation." In re Terrorist Attacks on Sept. 11, 2001 , 714 F.3d 659, 673 (2d Cir. 2013), cert. denied sub nom. O'Neill v. Al Rajhi Bank , ––– U.S. ––––, 134 S.Ct. 2870, 189 L.Ed.2d 848 (2014) (quoting Jazini , 148 F.3d at 185 ). In resolving a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), a district court may consider materials outside the pleadings. Dorchester Fin. Sec. , 722 F.3d at 86 (citing S. New Eng. Tel. Co. v. Global NAPs Inc. , 624 F.3d 123, 138 (2d Cir. 2010) ); Pinto–Thomaz v. Cusi , No. 15-CV-1993, 2015 WL 7571833, at *3 (S.D.N.Y. Nov. 24, 2015) (citing DiStefano , 286 F.3d at 84 ).

In a case based on diversity jurisdiction, personal jurisdiction is determined by the law of the state in which the court sits. Ash v. Richards , 572 Fed.Appx. 52, 53 (2d Cir. 2014) (citing Whitaker v. Am. Telecasting, Inc. , 261 F.3d 196, 208 (2d Cir. 2001) ). The court must first look to the state's long-arm statute. Whitaker , 261 F.3d at 208. If the court can exercise jurisdiction pursuant to the long-arm statute, the court must subsequently determine whether the exercise of personal jurisdiction over the defendant would comport with the Due Process Clause of the United States Constitution. Best Van Lines, Inc. v. Walker , 490 F.3d 239, 242 (2d Cir. 2007) ("If, but only if, our answer is in the affirmative, we must then determine whether asserting jurisdiction under that provision would be compatible with requirements of due process established under the Fourteenth Amendment to the United States Constitution." (citing Int'l Shoe Co. v. Washington , 326 U.S. 310, 315, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ) ).

ii. Rule 12(b)(6)

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