Trisvan v. Heyman

305 F. Supp. 3d 381
CourtDistrict Court, E.D. New York
DecidedMarch 30, 2018
Docket16–CV–00084 (MKB)
StatusPublished
Cited by16 cases

This text of 305 F. Supp. 3d 381 (Trisvan v. Heyman) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trisvan v. Heyman, 305 F. Supp. 3d 381 (E.D.N.Y. 2018).

Opinion

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.

*389Defendants 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 *390have 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.

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305 F. Supp. 3d 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trisvan-v-heyman-nyed-2018.