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
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,
III. Relevant Factual Background
The following facts are drawn primarily from the parties' statements of mаterial facts, D. 66; D. 69,
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 "complainеd 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 gаining 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 effeсt 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
IV. Procedural History
On October 26, 2015, Jackson initiated this lawsuit in Norfolk Superior Court. D. 1-1. Defendants removed the case to this Cоurt 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 pаrty 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
V. Discussion
A. Additional Time for Discovery Is Not Warranted
Jackson now contends that Defendants' motion for summary judgment is "premature," D. 68 at 4, because he contends that he requires additional time to review Defendants' "voluminous" supplemental document, id. at 4-5, obtain his medical file from the Probate Court, id. at 6-7, and complete deposition of Dr. Kurland, id. at 7-8.
Considering Jackson's request under Fed. R. Civ. P. 56(d), thе Court begins its analysis of Jackson's response here. With the pendency of a summary judgment motion, a non-movant may resist a motion for summary judgment by seeking additional time for discovery under Fed. R. Civ. P. 56(d). Under Rule 56(d), a non-movant must show by affidavit or declaration that "for specified reasons, it cannot present facts essential to justify its opposition" and seeks further time for discovery, opposes the motion for summary judgment or such other appropriate order. Fed. R. Civ. P. 56(d) ; Velez v. Awning Windows, Inc.,
Keeping this standard in mind, the Court has considered Jackson's filings and the affidavit of his counsel, D. 70, as invoking Rule 56(d) or its "functional equivalent." Velez,
Here, either under Rule 56(d) or its functional equivalent, Jackson has failed to persuade this Court that additional time for discovery is warranted. Certainly, Jackson has put the Court on notice that he seeks additional time for discovery prior to the Court's ruling on Defendants' motion for summary judgment, D. 68 at 1, 4; 6-8, and has offered some evidence that he has exеrcised due diligence in attempting to acquire the necessary materials - at
The Court concludes that granting Jackson's request additional time to conduct discovery, whether cast as a Rule 56(d) motion or its functional equivalent or even as a motion under Fed. R. Civ. P. 16(b)(4) to extend discovery by which Jackson has not shown "good cause," see D. 73 at 3-5, is not warranted here. Despite the multiple extensions of time to allow him to produce any evidence of expert opinion supporting his claims, he has failed to do so and, аt this critical juncture with Defendants' motion for summary judgment pending, D. 64, and a trial date looming, D. 58, it would be inequitable to allow Jackson to continue to press these claims without sufficient evidentiary support to support them.
B. Proof of Causation Is Required
Turning to Defendants' motion for summary judgment, Defendants argue that Jackson's counts fail because Jackson lacks sufficient evidence to demonstrate that the antipsychotic medication, Risperdal, caused his alleged injuries. D. 65 at 1-11. Causation is an essential element to demonstrate negligence (Counts I, VI, VII, VIII), breach of wаrranty (Count IX) and unfair or deceptive act or practices (Count X). See Kerlinsky v. Sandoz Inc.,
To "prevail in a pharmaceutical personal injury case, a plaintiff must establish two types of causation: general
It is also well-settled under Massachusetts law that understanding medical causation is "a matter beyond the common knowledge of the ordinary layman and proof of it must rest upon expert medical testimony." Hachadourian's Case,
Here, as referenced above in regard to his request for additional time for discovery, the onus is on Jackson to establish, by way of expert testimony, that his ingestion of Risperdal caused him injury, namеly, diabetes, weight gain and gynecomastia.
Next, Jackson contends that both Dr. Bellonci and Dr. Wolfson are "expected to testify that [they] did not know gynecomastia was a frequent side effect of Risperdal use, that [they] did not inform [Jackson] gynecomastia was side effect in his informed consent discussions" and that "had [they] known gynecomastia was a frequent side effect of Risperdal use, then [they] would have disclosed the existence of gynecomastia" and that the "side effect likely would have at least altered [their] own risk/benefit consideration prior to recommending Risperdal." 67-2 at 2. As explained above, there is no indication of the cause - general or specific - of Jackson's gynecomastia. See id. Even more significantly, neither Dr. Bellonci nor Dr. Wolfson, both psychiatrists, have even ever diagnosed Jackson with gynecomastia. D. 66 ¶ 49; see ¶¶ 36-37. That gynecomastia is a side effect of Risperdal, withоut more, does not prove it specifically caused Jackson to develop this side effect, see Josi's Case,
The need for expert testimony becomes even more important when alternative causes are presented. See McDaniel v. Terex USA, L.L.C.,
C. No Strict Product Liability in Massachusetts (Counts III and V)
With respect to Jacksons' claims of strict products liability, Counts III and V, they fail as a matter of law as Massachusetts does not grant relief for such claims. See Mavilia v. Stoeger Indus.,
D. Negligent Failure to Warn (Count VI)
Even assuming Jackson was able to overcome the burden of causation, the negligent failure to warn, Count VI, would still fail. To succeed on a theory of negligent failure to warn here, a plaintiff must prove that "the user [was] injured due to the failure of the manufacturer to exercise reasonable care in warning potential users of hazards associated with the use of the product." Laaperi v. Sears, Roebuck & Co.,
E. Breach of Express Warranty (Count III)
Even assuming again that Jackson can establish medical causation, his breach of express warranty claim (Count III) also fails. The theory underlying a breach of express warranty claim is that "defendants are liable to the plaintiff for failure to provide a design that meets a standard of performancе allegedly promised by the defendants." Anthony's Pier Four, Inc. v. Crandall Dry Dock Engineers, Inc.,
As to Count IV, the claim for fraudulent concealment, also fails. Proof of fraudulent concealment, to toll a statute of limitation, requires: "first, the defendant raising the limitations defense must have engaged in fraud or deliberate concealment of material facts related to the wrongdoing, and second, the plaintiff must have failed to discover these facts within the normal limitations period despite his or her exercise of due diligence." Gonzalez v. United States,
VI. Conclusion
For the foregoing reasons, this Court ALLOWS Defendants' motion for summary judgment, D. 64.
So Ordered.
Notes
As an initial matter, the Court notes that Jackson has failed to controvert the undisputed facts as set forth in Defendants' statement of facts, D. 66, even as the Court has also considered Jackson's affirmative statement of facts, D. 69. Accordingly, the "[m]aterial facts of record set forth" in Defendants' statement of undisputed facts are "deemed for the purposеs of the motion to be admitted." D. Mass. L. R. 56.1.
As a result of being a ward of the Commonwealth of Massachusetts, consent to administer antipsychotic medications were handled through submissions to the Probate Court referred to as "Roger's petitions." D. 66 ¶ 12; D. 69 ¶ 3.
In his opposition to the Defendants' summary judgment motion, Jackson also cites "obesity" as a fourth injury. D. 68 at 2. This injury (even as it may logically relate to weight gain) was also not the subject of any expert disclosure or proffered expert testimony in this case and Jackson's showing of causation fails as to this alleged injury as well.
Given this conclusion, the Court need not reach Defendants' further argument regarding Jackson's failure to overcome the learned intermediary doctrine. D. 65 at 9-10.