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Document 1 Case 1:14-cv-00820-GTS-RFT Filed 07/08/14 1 of 8 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 Filed 07/08/14 Document 1 Case 1:14-cv-00820-GTS-RFT Page 2 of 8 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 Filed 07/08/14 Document 1 Case 1:14-cv-00820-GTS-RFT and treated with from Page approximately 2001-2008, 3 of 8 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 4 of 8 concealed and/or period (and earlier), development of these complications than patients taking provide Page Nevertheless, during the aforesaid period (and earlier), defendants, in their 15. disclose to Filed 07/08/14 Document 1 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 4 Case 1:14-cv-00820-GTS-RFT bilateral reduction/removal Filed 07/08/14 Document 1 surgeries, and sustained other serious, Page 5 of 8 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 Page 6 of 8 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. Filed 07/08/14 Document 1 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, Document 1 Case 1:14-cv-00820-GTS-RFT 30. The aforesaid defective up until the time of their his years Page 7 of 8 tablets were---in each and every instance--- Risperdal and at the time of their sale, and remained they left defendants' facilities, defective when Filed 07/08/14 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 7 by plaintiff (over and impliedly the course to its of his years warranted to the consuming Document 1 Case 1:14-cv-00820-GTS-RFT public, including plaintiff, that the drug was Filed 07/08/14 of merchantable Page quality, and 8 of 8 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