Download Plaintiff Shaquil Byrd, by and through his attorneys, DeGraff, Foy

Document 1
Case 1:14-cv-00820-GTS-RFT
Filed 07/08/14
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Page
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
SHAQUIL BYRD,
PLAINTIFF,
COMPLAINT
V.
(GTS/RFT)
1:14-CV-820
JANSSEN
PHARMACEUTICALS, INC. and
JURY TRIAL
IS DEMANDED
JOHNSON & JOHNSON
DEFENDANTS.
Plaintiff Shaquil
Byrd, by and through his attorneys,
De Graff,
Foy & Kunz, LLP,
complaining of defendants, alleges upon information and belief as follows:
SUMMARY OF CLAIM
1.
This action
seeks,
inter
alia, damages for personal injury, pain, suffering,
economic loss, and the cost of past and future medical
Byrd, due
to the
liability
breach of warranty
sale of the
of defendants, based
arising
from defendants'
care
sustained
negligence,
strict
by plaintiff Shaquil
products liability,
and
manufacture, marketing, distribution
and
on
atypical antipsychotic prescription drug Risperidone, known by
the trade
namel "Risperdal" (which includes Risperdal Consta, and Risperdal M-Tab),
plaintiff
was
prescribed and treated
with from
approximately 2001-2008,
which
while still
a
minor.
JURISDICTION
2.
U.S.C.
This Court has
subject
matter
jurisdiction
of this action pursuant to 28
1332 in that the amount in controversy exceeds the
Ii And hereafter referred to
as
1
sum
of
Seventy
Five
($75, 000.00) Dollars
Thousand and 00/100
is between the
Pennsylvania
plaintiff,
and New
a
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Case 1:14-cv-00820-GTS-RFT
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exclusive of interest and costs, and this action
citizen of New York, and the defendants, corporate citizens of
Jersey,
or
in the
alternative, citizens of
a
state other than New
York.
PARTIES
3.
The
4.
The defendant Janssen
is
plaintiff, Shaquil Byrd,
an
individual
residing
in
Albany,
New
York.
corporation organized
other than New
York),
other than New
York).
existing pursuant
with its
to
principal place
Inc.
the laws of
("Janssen")
is
Pennsylvania (or
of business in New
Jersey (or
foreign
a
some state
state
some
5.
Defendant Janssen is authorized to do business in the State of New York.
6.
The defendant Johnson &
organized
York),
and
Pharmaceuticals,
and
existing pursuant to the
with its
principal place
Johnson
laws of New
of business in New
("J
&
J") is
Jersey (or
Jersey (or
a
foreign corporation
some state
some
other than New
state other than New
York).
7.
Defendant J & J is authorized to do business in the State of New York.
8.
At
("defendants")
all
were
times
engaged
relevant
hereto, defendants Janssen and/or
in the business of
J
&
designing, developing, manufacturing,
testing, inspecting, advertising, selling, transporting, marketing, promoting,
distributing
name
the
atypical antipsychotic prescription drug Risperidone,
"Risperdal" (which
includes
Risperdal Consta,
2
J
and
known
by
and
the trade
Risperdal M-Tab),
which
plaintiff
was
prescribed
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Case 1:14-cv-00820-GTS-RFT
and treated with from
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approximately 2001-2008,
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while still
a
minor.
Prior to 2001 defendants did, in the normal
9.
transfer, deliver,
or
otherwise
in the stream of
place
course
commerce
and conducted business in, and had and continue to have
of
business, sell,
the aforesaid
Risperdal,
significant, purposeful,
and
deliberate business contacts with and in the State of New York.
STATUTE OF LIMITATIONS
Pursuant to the
10.
is
timely brought,
been born
on
as
tolling provisions
plaintiff was
a
of (New
minor when his
July 13, 1993---has yet to
cause
reach twenty-one
York's) CPLR
of action
(21)
208, this claim
accrued, and---having
years of age.
FIRST CLAIM FOR RELIEF
(Negligence)
Plaintiff repeats and
11.
paragraphs "1" through "10"
12.
took
Risperdal
13.
was
From
above
and every
if fully set forth herein at
allegation
length.
for the
purported treatment of his mental health diagnoses.
During
the aforesaid
development
of
other medical
problems.
a
period (and earlier), defendants
high incidence
gynecomastia (the growth
Accordingly, defendants
foreseeable risk
set forth in
approximately 2001-2008, plaintiff Shaquil Byrd was prescribed and
defective, and that it had
14.
as
reallges each
of serious side effects,
of male
knew
or
knew that
Risperdal.
3
including
breasts), hyperprolactinemia,
should have known that there
plaintiff Shaquil Byrd (and similarly-situated patients)
side effects from
Risperdal
the
and
was a
would suffer
to the
respective
efforts to market the
minimized
Risperdal's significant side effects.
Specifically, during
16.
drug
the aforesaid
physicians, patients (such
situated, that Risperdal
medical
problems,
was
and that
likely
public,
to cause
sufficient
general public
warnings
patients taking Risperdal
were
In
light
a
much
higher risk for the
similar medications.
dangers
and/or the
and adverse effects associated with
Risperdal,
and other medical
awareness
that the
problems.
carried with it
drug
patients developing gynecomastia, hyperprolactinemia,
things)
to the
was
to
plaintiff
of defendants' full
problems, Risperdal
other
at
and instructions that would have put
notice of the
on
increased risk of
(among
similarly
gynecomastia, hyperprolactinemia, and other
including, gynecomastia, hyperprolactinemia,
18.
defendants failed to
and those
plaintiff Shaquil Byrd),
as
considerably
Further, during the aforesaid period (and earlier), defendants failed
17.
medical
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concealed and/or
period (and earlier),
development of these complications than patients taking
provide
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Nevertheless, during the aforesaid period (and earlier), defendants, in their
15.
disclose to
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Case 1:14-cv-00820-GTS-RFT
(at all
relevant
times)
inaccuracy/incompleteness
defective
of its
as
an
and other
marketed, due
labeling, instructions,
and
warnings.
19.
It
was
reasonable for
plaintiff Shaquil Byrd
representations regarding the safety and efficacy of Risperdal,
20.
As
a
direct result of his
Shaquil Byrd
has suffered
gynecomastia
and
physical
course
to
and
rely
defendants'
plaintiff did so rely.
of treatment with
and emotional
on
injuries including
Risperdal, plaintiff
the
development
of
hyperprolactinemia (with accompanying lactation), required multiple
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Case 1:14-cv-00820-GTS-RFT
bilateral reduction/removal
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surgeries,
and sustained other serious,
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painful, disabling,
and
permanent personal injuries.
The aforesaid
21.
gynecomastia
and other
lactation), multiple surgeries,
and
hyperprolactinemia (with accompanying
serious, painful, disabling and permanent
personal injuries sustained by plaintiff Shaquil Byrd,
caused and/or necessitated
on
by
the
negligence
were
directly
and
proximately
of the defendants, without any
negligence
the part of plaintiff contributing thereto.
The
22.
negligence of the defendants consisted,
among other
things,
following:
(a) in designing, manufacturing, marketing and/or distributing for sale
the
drug Risperdal
in
a
dangerous
and defective manner,
thereby
exposing plaintiff Shaquil Byrd (and similarly-situated patients)
to an
unreasonable risk of harm;
(b)
in
failing
to
properly, adequately,
and
appropriately
Shaquil Byrd (and similarly-situated patients)
associated with
(c)
in
dangers,
(d)
in
as a
of adverse events, FDA
and FDA requests to
dangers
which did not
statutes, rules and
satisfy
regulations;
(e) in being otherwise
safe and effective
drug, despite
warnings regarding Risperdal's
modify the warning labels;
designing, manufacturing,
Risperdal
of the risks and
plaintiff
Risperdal;
continuing to promote Risperdal
patient reports
warn
or
and/or
distributing
conform to
and
careless and
5
negligent.
for sale the
applicable
drug
Federal and State
of the
23.
Byrd
As
a
multiple surgeries,
which
result of the aforesaid
suffered serious
injuries
24.
and
physical injuries
amount to be
negligence
of the
with attendant
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defendants, plaintiff Shaquil
pain
and
suffering, required
rendered and continues to be sick, sore, lame, and disabled,
was
and disabilities will be permanent.
Plaintiff
Shaquil Byrd
has
considerable expense for his medical care,
25.
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Case 1:14-cv-00820-GTS-RFT
By
reason
of the
determined
by
incurred
hospital care
and will
incur in the
future
and treatment.
foregoing, plaintiff Shaquil Byrd
was
damaged
in
an
the Court, but not less than Two Million and 00/100
($2, 000, 000.00) Dollars, together with interest thereon as permitted by law.
SECOND CLAIM FOR RELIEF
(Strict Products Liability)
26.
Plaintiff repeats and
paragraphs "1" through "25"
27.
to
Upon
all persons whom
as
they
could
each and every
though fully
sale of the aforesaid
defectively-designed drug
side
above
realleges
set forth herein at
Risperdal, defendants
reasonably foresee would
for which
be
set forth in
allegation
length.
assumed
injured by
a
strict
liability
the sale of this
appropriate warnings (regarding significant, likely
effects) were never communicated.
28.
The
plaintiff Shaquil Byrd
was
covered
by
and included in the aforesaid
assumption of strict liability.
29.
At all times relevant
hereto, the drug Risperdal
was a
defective
(within the meaning of the doctrine of strict products liability) inasmuch
be taken
safely,
due to its
labeling/warning, marketing,
dangerous, hazardous,
and
condition,
6
as
and defective
set forth herein.
as
product
it could not
manufacture, design,
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Case 1:14-cv-00820-GTS-RFT
30.
The aforesaid
defective up until the time of their
his years
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tablets were---in each and every instance---
Risperdal
and at the time of their sale, and remained
they left defendants' facilities,
defective when
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ingestion by plaintiff Shaquil Byrd,
over
the
course
of
treating with the drug.
31.
As
aforementioned
a
direct and
proximate
result of the defective condition of the
Risperdal, plaintiff Shaquil Byrd sustained serious physical injuries, pain,
suffering and permanent disability.
32.
By
reason
of the
amount to be determined
by
foregoing, plaintiff Shaquil Byrd
was
in
damaged
an
the Court, but not less than Two Million and 00/100
($2, 000, 000.00) Dollars, together with interest thereon as permitted by law.
THIRD CLAIM FOR RELIEF
(Breach
33.
Plaintiff repeats and
paragraphs "1" through "32"
34.
prescription,
treating
of Express and
Upon
as
each and every
reallges
though fully
ingestion
drug), defendants
thereof
allegation
set forth herein at
the manufacture and sale of the aforesaid
distribution and
with the
above
Implied Warranty)
made certain express and
consuming public, including plaintiff, concerning (among
length.
Risperdal,
by plaintiff (over
the
set forth in
and
prior to
of his years
course
implied warranties
other
things)
its
the
to the
safety
and
efficacy of the drug.
35.
scription,
Upon the manufacture and sale of the aforesaid Risperdal, and prior
distribution and
with the
drug),
ingestion
defendants
thereof
expressly
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by plaintiff (over
and
impliedly
the
course
to its
of his years
warranted to the
consuming
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Case 1:14-cv-00820-GTS-RFT
public, including plaintiff,
that the
drug
was
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of merchantable
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quality,
and
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reasonably fit,
safe and suitable for its intended purpose.
36.
The aforesaid
Risperdal
was
not of merchantable
quality,
nor
fit, safe,
or
suitable for its intended purpose.
37.
The aforesaid
warranties rendered
38.
Plaintiff
Shaquil Byrd
dangerous, unsafe, unfit,
was
plaintiff Shaquil Byrd
40.
By
not aware
Risperdal,
of, and could
which made the
not have
discovered
drug unreasonably
unsuitable for its intended use, and not of merchantable
The severe,
of the express and
implied
by the defendants.
the defective nature of the aforesaid
39.
did not conform to the express and
Risperdal
painful,
brought
were
and permanent
about
as a
injuries
direct and
quality.
and disabilities suffered
proximate
by
result of the breach
implied warranties by the defendants.
reason
of the
amount to be determined
by
foregoing, plaintiff Shaquil Byrd has been damaged
in
an
the Court, but not less than Two Million and 00/100
($2, 000, 000.00) Dollars, together with interest thereon as permitted by law.
WHEREFORE, plaintiff Shaquil Byrd demands judgment in his favor and
against the defendant on each claim for relief (together with interest thereon as permitted
by law),
costs and disbursements of this
action, and such other and further relief as the
Court deems just and proper.
Dated:
July 8,
2014
Luke S. Malamood, Esq.
Bar Roll No. 517364
DeGRAFF, FOY & KUNZ, LLP
Attorneys for Plaintiff
41 State Street, 9th Floor
Albany, New York 12207
518-462-5300
8
Case 1:14-cv-00820-GTS-RFT Document 1-1 Filed 07/08/14 Page 1 of 1
1:14-cv-820 (GTS/RFT)
#0206-2987184
$400
GTS
1:14-cv-820
RFT