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Smith v. Janssen Pharmaceuticals, Inc.

United States District Court, D. Kansas

February 27, 2017

BERNARD L. SMITH, Plaintiff,
v.
JANSSEN PHARMACEUTICALS, INC., ET AL., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

         Pro se plaintiff Bernard L. Smith brings product liability claims against defendants Janssen Pharmaceuticals, Inc., Johnson & Johnson Company, and Janssen Research & Development, LLC, alleging the prescription drug Risperdal caused him to develop gynecomastia and galactorrhea. Janssen Pharmaceuticals is the manufacturer/distributor of Risperdal, an anti-psychotic medication, and Johnson & Johnson is the parent company of Janssen. Before the Court is Defendants' collective Motion for Summary Judgment (Doc. 67). Defendants argue Plaintiff has failed to present evidence on causation, a necessary element for his claim. For the following reasons, the Court grants Defendants' motion.

         I. Factual Background

         Plaintiff has been incarcerated in Kansas since May 16, 2005. While incarcerated, Plaintiff was treated for various mental health issues, including bipolar disorder and auditory and visual hallucinations. On February 4, 2007, Plaintiff was placed on a trial of Risperdal, which he took until he was prescribed the generic version, Risperidone, on July 6, 2008. Plaintiff then took Risperidone in varying doses until February 10, 2014, minus a two-week period he was prescribed a different drug.

         Based on medical records provided by Plaintiff and Defendants, Plaintiff first complained of gynecomastia-a condition in which men experience abnormally enlarged breast tissue-and galactorrhea-a spontaneous discharge from the nipple on the breast-in a February 8, 2014 “Nursing Progress Note.” Plaintiff told the reporting nurse that “he had talked to his lawyer and with the advice of his lawyer that his medical records needed to have information about the galactorrhea and gyneromastia [sic] on his inmate medical records.” (SEALED Doc. 73-1 at 2.) Plaintiff complained of pain in his breast and sore and leaking nipples. Id. On February 10, 2014, Plaintiff had a psychiatric evaluation in which he complained of swelling and leaking breasts. (SEALED Doc. 73-2 at 2.) He told the physician “[m]y attorney said I need to get it in writing what is going on with the medication.” Id. The reporting physician noted she recommended that Plaintiff discontinue the Risperdal prescription as it can cause galactorrhea and gynecomastia. Id. There is no evidence to suggest Plaintiff took Risperdal or Risperidone at any time after February 10, 2014.

         According to a February 11, 2014 Nursing Progress Note, Plaintiff again reported that he was on Risperdal and developed swollen breasts and sore nipples. He told the reporting nurse “[m]y doctor on the street says I have gynecomastia and galactorrhea. I need to see someone so it can be logged. I need something, for the pain. I need you to log that this is what it is. Why come you just cant this is what going on with my body.” (SEALED Doc. 73-3 at 2.) The reporting nurse noted that Plaintiff said his lawyer told him he needed a doctor to diagnose him with the condition. Id. Plaintiff was referred to a doctor for his alleged condition. Id.

         Approximately two weeks after Plaintiff's Risperidone prescription was discontinued, Plaintiff again visited the prison health facilities complaining of sore and leaking breasts. (SEALED Doc. 73-5 at 2). The treating APRN noted on Plaintiff's Chart Note there was “no discharge from either breasts, no inflammation, c/o tenderness with palpation. No abnormal enlargement noted.” Id. at 3. Under the “Assessment Plan” the APRN noted “Inflammatory Disease of Breast (611.0), Acute.” Id.

         On June 11, 2015, Plaintiff was seen by Dr. Gordon Harrod. Dr. Harrod noted Plaintiff wanted “some documentation of gynecomastia from Risperdal therapy. . . . He tells me he has breast leaking ‘constantly.' The fluid is thin white/yellow. It was worse while on the Risperdal. He is very adamant about something being in his chart about gynecomastia.” (SEALED Doc. 73-4 at 2.) After his evaluation, however, Dr. Harrod rejected any diagnosis of gynecomastia:

“Regarding is [sic] ‘gynecomastia, ' I see no reason to tack on that diagnosis. He speaks of a lawyer wanting something saying in the chart that he has gynecomastia. I cannot in good conscious [sic] say he has true gynecomastia. He has some muscular pectoralis muscles but I can't see any discharge or any irregularity in his breast exam.”

Id. at 3. On August 28, 2015, Plaintiff sent correspondence to “Dr. Wade” of Corizon Health requesting “Dr. Wade” sign a sworn affidavit stating “on June, 2015, I diagnosed Mr. Bernard Smith of having a continuous prolonged physical damage called gynacomastia [sic] which was caused by taking a Drug called Respidal [sic].” (SEALED Doc. 73-6 at 2.) Mr. Wade, an APRN, returned the correspondence to Plaintiff noting “Wade, APRN, did not diagnose you with gynecomastia, nor does he feel you suffer from this condition.” Id.

         Neither party has provided any evidence showing Plaintiff was ever diagnosed with gynecomastia or galactorrhea. Nor is there any expert evidence in the record linking any symptoms Plaintiff may have suffered to either Risperdal or Risperidone.

         On April 13, 2015, Plaintiff filed a petition for personal injury in the District Court of Labette County, Kansas. (Doc.1-1 at 1.) Plaintiff alleged he was injured after taking Risperdal, which caused extreme weight gain and gynecomastia. (Doc. 1-1 at 2.) Defendants removed the case to this Court based on diversity jurisdiction.

         II. Legal Standards

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A “genuine” factual dispute requires more than a mere scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party demonstrates an absence of evidence in support of an element of the case, the burden then shifts to the nonmoving party who “must set forth specific ...


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