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BROOKS v. JOHNSON & JOHNSON

May 10, 1988

David C. Brooks
v.
Johnson and Johnson, Inc., et al.


Lord, III Senior United States District Judge.


The opinion of the court was delivered by: LORD, III

LORD, III SENIOR JUDGE

 Plaintiff's initial complaint was dismissed for lack of subject matter jurisdiction. For the reasons that follow, plaintiff's amended complaint will be dismissed in part.

 Plaintiff alleges that he was given the medication Haldol by medical personnel. Haldol is allegedly manufactured by defendant McNeilab, allegedly a wholly owned subsidiary of defendant Johnson and Johnson. Plaintiff alleges that defendants deliberately "suppressed the fact that Haldol has . . . approximately 350 . . . serious and deadly side effects." Plaintiff alleges that defendants' actions violated the Mental Health Patient "Bill of Rights" as set forth at 42 U.S.C. § 10841. *fn1"

 Section 10841 provides, in relevant part:

 
§ 10841. Restatement of Bill of Rights
 
It is the sense of the Congress that . . . each State should review and revise, if necessary, its laws to ensure that mental health patients receive the protection and services they require, and that in making such review and revision, States should take into acount . . . the following:
 
(1) A person admitted to a program or facility for the purpose of receiving mental health services should be accorded the following:
 
(A) The right to appropriate treatment and related services
 
. . . .
 
(C) The right to ongoing participation, in a manner appropriate to such person's capabilities, in the planning of mental health services to be provided such person . . . and, in connection with such participation, the right to be provided with a reasonable explanation, in terms and language appropriate to such person's condition and ability to understand, of -
 
. . . .
 
(iii) the nature and significant possible adverse effects of recommended treatments;

 A threshold issue is whether § 10841 creates any enforceable rights or duties. See Student Coalition for Peace v. Lower Merion School, 776 F.2d 431, 438 (3d Cir. 1985). It appears that this is an issue of first impression. *fn2" The statutory language, setting forth "the sense of Congress," and recommending that States "should" review their laws regarding mental health patients is plainly precatory. Also, the "rights" set forth are for the State's consideration when undertaking this review. Significantly, this section neither requires nor prohibits any action on the part of the states or any other party. In addition, the legislative history is consistent with Congress's use of precatory statutory language. The Senate Report declares that the Bill of Rights is a "statement of Congressional viewpoint," and emphasizes that this section " further encourages each state to review and revise its laws to insure that mentally ill persons receive the protection and service they ...


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