Francis v. Johnson & Johnson

Background

Damian Francis brought a products-liability action against Johnson & Johnson concerning Risperidone. Francis alleged that he took the drug sometime around 2009 and that it caused weight gain and gynecomastia. He also alleged that he was not told Risperidone could lead to gynecomastia. The opinion states that Francis represented himself.

Francis initially filed the action in New York state court on August 27, 2021, and Johnson & Johnson later removed it to federal court. After earlier amendments and a prior dismissal, Francis filed a Second Amended Complaint. Johnson & Johnson moved to dismiss that complaint under Rule 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim, and also argued that the claims were barred by New York’s statute of limitations. Francis filed an opposition and a separate motion asking the court to dismiss Johnson & Johnson’s argument; that motion was filed without the court’s permission and did not explain its basis or include supporting documents.

Products-Liability Claim

The court liberally construed the Second Amended Complaint as a strict-products-liability claim based on an alleged failure to warn about Risperidone’s adverse effects. Under the court’s description of New York law, Francis needed to show that the drug caused his injury and that Johnson & Johnson breached a duty to warn about the possibility of that reaction.

The court held that the complaint did not allege facts suggesting that Johnson & Johnson breached a duty to warn, that the drug was defective, or that Johnson & Johnson was negligent. The court therefore dismissed the products-liability claim.

Statute of Limitations

The court also held that Francis’s claims were time-barred under New York law. New York generally gives three years for personal-injury claims, measured from when the injury was discovered or reasonably should have been discovered. The court stated that the relevant discovery date is when the plaintiff first noticed symptoms, rather than when a physician first diagnosed them.

Francis argued that he was not diagnosed with gynecomastia until 2018 and relied on a physician’s letter dated February 24, 2018. Even assuming that was the first date he learned of the diagnosis, the court concluded that he needed to file by February 24, 2021. His initial filing on August 27, 2021, was approximately six months late. The court also declined to apply another state’s statute of repose because New York has no applicable statute of repose for these products-liability claims and Francis had not raised a choice-of-law issue.

Other Allegations and Motions

Francis raised allegations in his opposition that Johnson & Johnson aggressively marketed Risperidone and minimized the seriousness of its side effects. The court declined to consider those allegations because Francis raised them for the first time in his opposition and had not requested permission to add them to the complaint.

The court denied Francis’s separate motion to dismiss Johnson & Johnson’s argument. The court found that the motion was vague, unsupported, and filed without permission, and also stated that the motion was moot because the court was granting Johnson & Johnson’s dismissal motion.

Disposition

The court granted Johnson & Johnson’s motion to dismiss without prejudice and denied Francis’s motion. Because Francis raised two additional allegations in his opposition, the court granted him one final opportunity to file a Third Amended Complaint containing claims he believed in good faith were not barred by the court’s conclusions. He had 30 days from issuance of the order to amend. The order states that if he failed to file a timely Third Amended Complaint, the dismissed claims would be dismissed with prejudice.