United States District Court, D. Maryland
STEPHANIE A. GALLAGHER, UNITED STATES DISTRICT JUDGE
Alexander Jiggetts filed this action, pro se,
against Defendant Janssen Pharmaceuticals, Inc.
(“Janssen”), alleging that he suffered injuries
after ingesting two drugs he alleges were manufactured by
Janssen. ECF 56 (Amended Complaint). Four motions are
currently pending: Plaintiff's Motion for Trial by Judge
And Or Jury Trial, ECF 60; Plaintiff's two Motions for
Order to Issue Subpoenas, ECF 71 and 75; and Janssen's
Motion for Summary Judgment, ECF 66. I have reviewed those
Motions, and the associated Oppositions and Replies. ECF 69,
70, 74, 77, 79. No hearing is necessary. See Loc. R.
105.6 (D. Md. 2018). For the reasons described below,
Plaintiff's Motions will be denied, and Janssen's
Motion will be granted.
filed this action on October 29, 2018, alleging that he
“grew breast, ” suffered weight gain, and
experienced fatigue after taking Risperidone and Invega
Sustenna. ECF 1. United States District Judge Richard D.
Bennett issued a Scheduling Order on January 28, 2019, and
the parties commenced discovery. ECF 11. The scheduling order
provided a deadline of March 29, 2019 for Plaintiff to
identify expert witnesses pursuant to Federal Rule of Civil
Procedure 26(a)(2), and set a discovery deadline of June 12,
2019. ECF 11 at 2. Plaintiff did not identify any expert
witnesses on or before March 29, 2019. In fact, on March 26,
2019, Plaintiff served answers to Janssen's
Interrogatories, in which he represented, in relevant part,
that he had not “been to the doctors about this
situation, ” and did not have “the lot number and
product code” for the drugs he allegedly consumed. ECF
79-2 at 3 (Response 2); id. at 4 (Response 6);
see also ECF 66-5 at 2 (Plaintiff's Response to
Janssen's Request for Documents No. 4, stating, “I
haven't seen any doctors [sic] in reference to the
injuries in my complaint”). In his response to
discovery requests, Plaintiff acknowledged that he had no
documents to support his claim, and had no expert witness to
testify on his behalf. ECF 66-4 at 3-4.
to documents Plaintiff submitted in connection with the
pending motions, he first began seeking medical treatment in
April, 2019, though he did not supplement his discovery
responses to Janssen. ECF 79-2 at 1-2 (calendar entries
showing medical appointments). Plaintiff also submitted an
April 11, 2019 lab result from LifeBridge Health, showing
elevated “Prolac” levels. ECF 69-1 at 2.
Plaintiff attached an October, 2019 message exchange
appearing to be with a medical doctor, Dr. Arshpreet Kaur, in
which Dr. Kaur opined that “risperdal and
invega” “do not usually cause erectile
dysfunction as a side effect, ” but advised Plaintiff
to check with his Urologist. ECF 69-1 at 3. Dr. Kaur stated
that “the high prolactin levels were most likely due to
the medications, ” but asked for additional blood work
to confirm the finding. Id. Dr. Kaur also said that
“risperidone and Invega can cause weight gain” as
a known side effect. Id. at 4. Finally, Plaintiff
submitted what appeared to be an October, 2019 message
exchange with Dr. Aaron C. Weinberg, in which the doctor
said, “I am happy to try other medications for erectile
dyfunction [sic], unfortunatly [sic] the Medications you are
on can cause erectile dysfunction.” Id. at 5.
now seeks summary judgment. Summary judgment is warranted
where the plaintiff “fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). As the non-moving
party, the plaintiff must adduce evidence establishing that a
“reasonable jury could return a verdict” in his
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
the precise parameters of Plaintiff's claims against
Janssen are unclear, Plaintiff has not met his burden as to
several basic elements of his claim that would need to be met
whether his claim is construed as a “failure to
warn” or a “design defect” claim for
products liability. See ECF 56 at 1. First,
Plaintiff has not proffered any admissible evidence that he
took pharmaceuticals manufactured by Janssen. See Lee v.
Baxter Healthcare Corp., 721 F.Supp. 89, 92 (D. Md.
1989) (“Under traditional products liability law, the
plaintiff must prove that the defendant manufacturer made the
product that caused plaintiff's injury.”).
Plaintiff asserted “privilege” in response to
Janssen's discovery requests seeking information about
his prescribing physicians, and provided no medical records
to support his claim during discovery. See, e.g.,
ECF 66-4; ECF 79-2. He specifically denied having the
“lot number and product code” for the medications
he took, rendering it impossible to identify the manufacturer
of those medications as Janssen. ECF 79-2 at 4 (Response 6).
now, Plaintiff has filed motions seeking to subpoena his
treating and prescribing doctors and hospitals. ECF 71 at 1; ECF
75 at 1. Plaintiff should have pursued those records during
the discovery period, either by seeking subpoenas at that
time, or by assisting Janssen's counsel to investigate by
providing the medical releases Janssen would need to subpoena
the information. Plaintiff cannot thwart the discovery
schedule set by the Court by impeding discovery during the
relevant window, and then seeking subpoenas long after
discovery ends. See McNeil v. United States, 508
U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.”); DeWitt v. Hutchins, 309
F.Supp.2d 743, 748 (M.D. N.C. 2004) (“Furthermore, a
party's failure to comply with a scheduling order due to
inattention, error, or unfamiliarity with court procedures
will not be excused by his pro se status.”). Other
information Plaintiff now seeks in his motions for order to
issue subpoenas, after the end of the discovery period,
relates to general issues dealing with other litigation
across the country involving related medications, and will
not address any of the fundamental flaws in Plaintiff's
case. Accordingly, Plaintiff's two Motions for Order to
Issue Subpoenas, ECF 71 and 75, are denied as both untimely
and largely irrelevant.
addition to his inability to establish that he ever took
pharmaceuticals manufactured by Janssen, Plaintiff has not
demonstrated that he has suffered any damages. He has
provided no medical records, even from the physicians he
contends he began seeing in 2019, to show any clinical
findings to support any of the symptoms he alleges. He
submits only calendar entries and apparent recent message
exchanges with the doctors, except for a single test result
showing elevated prolactin. ECF 69-1 at 2-5; ECF 79-2 at 1-2.
By Plaintiff's own assertion, his prolactin level has now
dropped significantly, ECF 79 at 5, and he has adduced no
medical evidence suggesting that temporarily elevated
prolactin levels cause any functional
Plaintiff has proffered no evidence that Risperidone or
Invega Sustenna caused any of the medical conditions he
alleges, even if it were to be assumed that he consumed those
drugs. See In re Lipitor (Atorvastatin Calcium) Mktg.,
Sales Practices & Prods. Liab. Litig., 892 F.3d 624,
642 (4th Cir. 2018) (“For specific causation, the
plaintiff must ‘demonstrate that the substance actually
caused injury in her particular case.'” (quoting
In re Lipitor, 150 F.Supp.3d 644, 649 (D.S.C.
2015))). Causation is generally required to be established
through expert testimony. See Rohrbough v. Wyeth Labs.,
Inc., 916 F.2d 970, 972 (4th Cir. 1990) (“[P]roof
of causation [that defendant's vaccine caused
plaintiff's injuries] must be by expert
testimony.”); Miskin v. Baxter Healthcare
Corp., 107 F.Supp.2d 669, 672 (D. Md. 1999)
(“[E]xpert testimony is usually necessary since the
evidence relating to causation involves technical medical
questions beyond the common knowledge of laypersons . . .
.”). Plaintiff did not identify an expert witness in
accordance with the Court's Scheduling Order,
see ECF 11 at 2, and there is no indication that
Plaintiff has any evidence suggesting causation in this case,
even from the two physicians he appears to have messaged. The
fact that the doctors stated during informal message
exchanges that the drugs “can cause weight gain”
or “can cause erectile dysfunction, ” ECF 69-1 at
3, 5, does not establish that drugs manufactured by Janssen
did cause the symptoms in Plaintiff's case.
noted above, Plaintiff did not properly engage in discovery
during the court-ordered discovery period, which might have
better allowed him to establish his claim. Pro se
litigants are required to abide by the procedural rules,
which include adherence to the schedule set by the Court.
See In re Under Seal, 749 F.3d 276, 290 (4th Cir.
2014) (reiterating that procedural rules apply equally to pro
se litigants (quoting McNeil, 508 U.S. at 113)).
described above, summary judgment in favor of Janssen is
appropriate, Plaintiff's motion for a trial will be
denied. Therefore, this Court will grant Janssen's Motion
for Summary Judgment, and deny the three Motions filed by
Plaintiff. A separate implementing Order follows.
 Although Plaintiff asked Dr. Kaur
about use of “risperdal and invega, ” ECF 69-1 at
3, Janssen, in its memorandum, identifies the drugs in
question as “Risperidone and Invega Sustenna.”
ECF 66. Dr. Kaur appeared to understand the drugs Plaintiff
was referring to, as his response mentioned
“risperidone and Invega, ” although that cannot
be confirmed without any testimony or records from Dr. Kaur.
ECF 69-1 at 4. The discrepancy ...