Niedner v. Ortho-McNeil Pharmaceutical, Inc., et al. (Lawyers Weekly No. 11-131-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-1272                                       Appeals Court   LESLIE NIEDNER, administratrix,[1]  vs.  ORTHO-McNEIL PHARMACEUTICAL, INC., & others.[2]     No. 15-P-1272.   Suffolk.     May 5, 2016. – September 21, 2016.   Present:  Cypher, Blake, & Henry, JJ.     Negligence, Duty to warn, Pharmaceutical manufacturer, Design, Defective product, Manufacturer.  Contract, Warranty.  Warranty.  Negligence, Misrepresentation.  Consumer Protection Act, Unfair or deceptive act.  Conscious Pain and Suffering.  Practice, Civil, Summary judgment.       Civil action commenced in the Superior Court Department on September 21, 2010.   The case was heard by Heidi E. Brieger, J., on a motion for summary judgment.     Roopal P. Luhana, of New York, for the plaintiff. Susan M. Sharko, of New Jersey, for Ortho-McNeil Pharmaceutical, Inc., and others.     BLAKE, J.  Adrianna Duffy was a seventeen year old college student when she collapsed in her dormitory room and died of a pulmonary embolism.  Duffy’s mother, Leslie Niedner, as administratrix of Duffy’s estate, filed a complaint against the defendants, Ortho-McNeil Pharmaceutical, Inc.; Johnson & Johnson; and Johnson & Johnson Pharmaceutical Research and Development, LLC (collectively, J & J), alleging multiple causes of action relating to J & J’s birth control product, Ortho Evra.[3]  Following a hearing on J & J’s motion for summary judgment, a judge of the Superior Court allowed the motion and ordered the dismissal of the complaint in its entirety.  We affirm. Background.  The following undisputed facts are taken from the summary judgment record.  Sara M. Nelson of the Massachusetts General Hospital Chelsea Healthcare Clinic was Duffy’s pediatrician from about October of 2004, until her death in 2009.  In July, 2008, Duffy, accompanied by Niedner, met with Nelson to discuss birth control options.  Nelson recommended and prescribed an oral birth control pill.  The prescription was filled in July, August, and September of 2008.  Duffy also used condoms when she was sexually active.  At some point thereafter, Duffy discontinued her use of oral birth control pills. In June, 2009, Duffy decided that she needed a backup birth control method, again, in addition to condoms.  She and Niedner met with Nelson on June 23, 2009, to discuss Duffy’s options.  Duffy asked Nelson about the Ortho Evra patch (patch), as she wanted an easy and simple method of birth control.  The patch prevents pregnancy by transferring synthetic forms of the hormones estrogen and progestin through the skin.  Unlike oral birth […]

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