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Trisvan v. Heyman

United States District Court, E.D. New York

March 30, 2018

JOHN TRISVAN, Plaintiff,
TOM HEYMAN, President, Johnson and Johnson Development Corporation; ALEX GORSKY, Chairman and CEO, Johnson and Johnson; JOAQUIN DUATO, Chairman; JOHNSON AND JOHNSON DEVELOPMENT CORPOATION; JANSSEN PHARMACEUTICALS; SIR PHILLIP HAMPTON, Chairman, Glaxosmithkline; ANDREW WITTY, CEO, Glaxosmithkline; GLAXOSMITHKLINE, LLC, Defendants.



         Plaintiff John Trisvan, proceeding pro se, commenced the above-captioned action[1] 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.

         Defendants 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 have 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 F. App'x 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. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). If a defendant challenges personal jurisdiction by filing a Rule 12(b)(2) motion, “the plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction.” Id. at 85 (quoting Ball, 902 F.3d at 197); Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167-68 (2d Cir. 2015) (same). Prior to discovery, a plaintiff need only plead “an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant.” Dorchester, 722 F.3d at 84 (quoting Ball, 902 F.3d at 197); Chirag v. MT Marida Marguerite Schiffahrts, 604 F. App'x. 16, 19 (2d Cir. 2015) (“A prima facie case requires non-conclusory fact-specific allegations or evidence showing that activity that constitutes the basis of jurisdiction has taken place.” (citing Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998))). After discovery, the plaintiff's prima facie showing must be factually supported. Dorchester Fin. Sec., 722 F.3d at 85 (quoting Ball, 902 F.3d at 197).

         The court must “construe the pleadings and any supporting materials in the light most favorable to the plaintiffs.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013) (citing Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)); Grundstein v. Eide, 598 F. App'x 45, 46 (2d Cir. 2015) (citing DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001)). However, the court need not “accept as true a legal conclusion couched as a factual allegation.” In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013), cert. denied sub nom. O'Neill v. Al Rajhi Bank, 134 S.Ct. 2870 (2014) (quoting Jazini, 148 F.3d at 185). In resolving a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), a district court may consider materials outside the pleadings. Dorchester Fin. Sec., 722 F.3d at 86 (citing S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 138 (2d Cir. 2010)); Pinto-Thomaz v. Cusi, No. 15-CV-1993, 2015 WL 7571833, at *3 (S.D.N.Y. Nov. 24, 2015) (citing DiStefano, 286 F.3d at 84).

         In a case based on diversity jurisdiction, personal jurisdiction is determined by the law of the state in which the court sits. Ash v. Richards, 572 F. App'x 52, 53 (2d Cir. 2014) (citing Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)). The court must first look to the state's long-arm statute. Whitaker, 261 F.3d at 208. If the court can exercise jurisdiction pursuant to the long-arm statute, the court must subsequently determine whether the exercise of personal jurisdiction over the defendant would comport with the Due Process Clause of the United States Constitution. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007) (“If, but only if, our answer is in the affirmative, we must then determine whether asserting jurisdiction under that provision would be compatible with requirements of due process established under the Fourteenth Amendment to the United States Constitution.” (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 315 (1945))).

         ii. Rule 12(b)(6)

         In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor.” Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff's pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).

         iii. Rule 9(b)

         “Rule 9(b) requires that ‘[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.'”[6] United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 25 (2d Cir. 2016) (alteration in original) (quoting Fed.R.Civ.P. 9(b)). “To satisfy this Rule, a complaint alleging fraud must ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.'” Id. (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)). Ultimately, whether a complaint satisfies Rule 9(b) “depends ‘upon the nature of the case, the complexity or simplicity of the transaction or occurrence, the relationship of the parties and the determination of how much circumstantial detail is necessary to give notice to the adverse party and enable him to prepare a responsive pleading.'” United States v. Wells Fargo Bank, N.A., 972 F.Supp.2d 593, 616 (S.D.N.Y. 2013) (citation omitted); see United States ex rel. Wood v. Allergan, Inc., 246 F.Supp.3d 772, 787 (S.D.N.Y. 2017) (quoting same); Kane ex rel, U.S. v. Healthfirst, Inc., 120 F.Supp.3d 370, 383 (S.D.N.Y. 2015) (quoting same); U.S. ex rel. Bilotta v. Novartis Pharm. Corp., 50 F.Supp.3d 497, 508 (S.D.N.Y. 2014) (quoting same); see also Rombach v. Chang, 355 F.3d 164, 171 (discussing the purpose of the particularity requirement and emphasizing fair notice to the defendant).

         b. The Court lacks personal jurisdiction over Defendants Hampton and Witty

         GSK Defendants argue the Court lacks personal jurisdiction over Defendants Hampton and Witty because they are “residents of the United Kingdom with no substantial contacts with the State of New York” and “did not manufacture or distribute any medications, including Wellbutrin, in their individual capacities, or have any involvement in Plaintiff's alleged use of the drug.” (GSK Mem. 4-6.) In addition, GSK Defendants contend that Hampton and Witty worked for GSK plc, “a separate and distinct legal entity from GSK LLC, the manufacturer and distributor of Wellbutrin.” (Id. at 4-5.) Plaintiff argues the Court has personal jurisdiction over Hampton and Witty through the application of the “effects doctrine, ” based on their alleged roles “oversee[ing] the manufacturing as well as distribution of [Wellbutrin].” (Am. Compl. 5.) Plaintiff also asserts that Hampton and Witty “maintain joint control and hold a majority of [GSK plc's] shares and proceeds from the corporation.” (Id.)

         “There are two types of personal jurisdiction: specific and general.” Sonera Holding B.V. v. Çukurova Holding A.Ş., 750 F.3d 221, 225 (2d Cir. 2014), cert. denied, 134 S.Ct. 2888 (2014). General jurisdiction permits a court to exercise personal jurisdiction over a defendant regardless of whether the underlying claim has a connection to the forum. Id. (“A court with general jurisdiction over a corporation may adjudicate all claims against that corporation - even those entirely unrelated to the defendant's contacts with the state.”). Specific jurisdiction requires a connection between the forum exercising jurisdiction over the defendant and the underlying controversy that gave rise to the claim. Id. (“Specific or conduct-linked jurisdiction . . . ‘depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum state and is therefore subject to the State's regulation.'”) (alteration omitted) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Under New York law, courts exercise specific jurisdiction pursuant to New York Civil Practice Law and Rules (“CPLR”) section 302 and general jurisdiction pursuant to CPLR section 301.

         “Section 302(a) . . . confers [specific] jurisdiction over individual corporate officers who supervise and control an infringing activity.” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010); Belabbas v. Inova Software Inc., No. 16-CV-7379, 2017 WL 3669512, at *3 (S.D.N.Y. Aug. 24, 2017) (“New York law does not distinguish actions taken in a defendant's personal capacity from actions taken in his ‘corporate' capacity.” (citing Chloe, 616 F.3d at 164)). A plaintiff “must show that the officer is a ‘primary actor[ ] in the transaction in New York' and not merely ‘some corporate employee . . . who played no part' in the allegedly tortious act.”[7] Giuliano v. Barch, No. 16-CV-0859, 2017 WL 1234042, at *12 (S.D.N.Y. Mar. 31, 2017) (quoting Retail Software Servs., Inc. v. Lashlee, 854 F.2d 18, 22 (2d Cir. 1988)). To be subject to jurisdiction, the officer must have “exercised some control over the purposeful activity” directed in or to the state. Jonas v. Estate of Leven, 116 F.Supp.3d 314, 328 (S.D.N.Y. 2015); see also Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 85 (2d Cir. 2018) (citing Retail Software, 854 F.2d at 22 for proposition that “New York law and due process [was] satisfied [for specific jurisdiction] where corporate officers allegedly benefitted from [corporation's in-forum] activities and exercised extensive control over [corporation] in the transaction underlying th[e] suit”)).

         “To make a prima facie showing of control, a plaintiff's allegations must sufficiently detail the defendant's conduct so as to persuade a court that the defendant was a primary actor in the specific matter in question.” Jonas v. Estate of Leven, 116 F.Supp.3d 314, 328 (S.D.N.Y. 2015) (quoting ADP Inv'r Commc'n Servs., v. In House Attorney Servs., Inc., 390 F.Supp.2d 212, 219 (E.D.N.Y. 2005)). “[C]ontrol cannot be shown based merely upon a defendant's title or position within the corporation, or upon conclusory allegations that the defendant controls the corporation.” Id. In evaluating control, courts often examine whether the officer had any direct involvement, knowledge, or consented to the transactions at issue. See Vista Food Exch., Inc. v. Champion Foodservice, LLC., No. 14-CV-804, 2014 WL 3857053, at *7 (S.D.N.Y. Aug. 5, 2014) (finding that courts have imputed personal jurisdiction to individual defendants where the officers had “negotiated or . . . signed . . . or were parties to the agreements”); New York v. Mountain Tobacco Co., No. 12-CV-6276, 2015 WL 893625, at *3 (E.D.N.Y. Feb. 26, 2015) (“Being a primary actor in the transaction[s] at issue requires that the officer have knowledge and consent to the transaction carried out by the agent-corporation and that the officer have exercised control over the corporation in the transaction.” (citations omitted)); Nelson A. Taylor Co., Inc. v. Technology Dynamics Group Inc., No. 95-CV-0431, 1997 WL 176325, at *5 (N.D.N.Y. Apr. 7, 1997) (personal jurisdiction imputed when defendants were alleged to have negotiated and signed the agreements in dispute, personally controlled all transactions, and authored virtually all correspondence); Sterling Interiors Group, Inc. v. Haworth, No. 94-CV-9216, 1996 WL 426379, at *15 (S.D.N.Y. July 30, 1996) (finding that participation in a scheme and the belief that individual, non-shareholding defendants were “believed to be or to have been fully aware of . . . condoned and directed the perpetuation of the scheme” were insufficient to establish personal jurisdiction). In certain cases, extensive control over the day to day operations of a corporation may also be sufficient. See EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 98 (2d Cir. 2016) (affirming district court's imputation of contracts of corporation to corporate defendant who had “extensive control over . . . day-to-day activities” and controlled all “final decisions”).

         The Court interprets the parties' dispute to be over the application of specific jurisdiction. Both parties agree that Hampton and Witty are domiciled in the United Kingdom, and have not transacted any business in New York as individuals. General jurisdiction, therefore, is improper. See Reich v. Lopez, 858 F.3d 55, 63 (2d Cir. 2017) (“General jurisdiction over an individual comports with due process in the forum where he is ‘at home, ' meaning the place of ‘domicile.'” (citation omitted)); Pinto-Thomaz v. Cusi, No. 15-CV-1993, 2015 WL 7571833, at *5 (S.D.N.Y. Nov. 24, 2015) (“New York courts have concluded that CPLR 301 applies to persons acting only in their individual capacities, and that their activities on behalf of an employer or corporation will not support the exercise of personal jurisdiction.” (citations omitted)). Moreover, the effects doctrine confers at most specific jurisdiction over defendants. See Waldman v. Palestine Liberation Org., 835 F.3d 317, 337 (2d Cir. 2016) (applying the “effects test” to determine whether the court had specific jurisdiction over the defendants); see also Charles Schwab, 883 F.3d at 87 (explaining the “effects test” is used to determine whether specific jurisdiction exists “where ‘the conduct that forms the basis for the controversy occurs entirely out-of-forum, and the only relevant jurisdictional contacts with the forum are therefore in-forum effects harmful to the plaintiff'” (citations omitted)).[8]

         Plaintiff fails to sufficiently allege control by Hampton and Witty over the sale or promotion of Wellbutrin to allow for the exercise of personal jurisdiction over them. Neither the Amended Complaint nor the opposition submission provide any non-conclusory allegations of personal involvement by Hampton or Witty. Instead, Plaintiff appears to assume their involvement on the basis of their positions as Chairman and CEO of GSK plc, [9] the principal of GSK LLC, [10] the makers and manufacturers of Wellbutrin. (See Am. Compl. 5 (“Hampton and . . . Witty are respectively, the Chairman and CEO, who both oversee the manufacturing as well as distribution of the drugs being made and sold by the corporation's subsidiaries.”); id. (“Hampton . . . and Witty during the time Plaintiff was injured was presently the Chairman and CEO of GlaxoSmithKline PLC . . . .”); Pl. Opp'n 2 (“Witty and Hampton were respectively the CEO and Chairman of GlaxoSmithKline . . . .”).) Further, the only reference to either Defendant in the articles covering GSK's settlements attached to the ...

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