Jacobson v. McNeil Consumer & Specialty Pharmaceuticals

Decision Date29 December 2009
Docket Number105923/06,1128N
Citation891 N.Y.S.2d 387,68 A.D.3d 652,2009 NY Slip Op 9694
CourtNew York Supreme Court — Appellate Division
PartiesBARRY JACOBSON et al., Appellants, v. McNEIL CONSUMER & SPECIALTY PHARMACEUTICALS, a Division of McNEIL-PPC, INC., et al., Defendants, and G.D. SEARLE & CO. et al., Respondents.

On March 30, 2004, plaintiffs' nine-year-old daughter had two seizures and was brought to NYU-Tisch Hospital, where she was diagnosed with a brain tumor and hydrocephalus. Surgery was performed the next day to remove the tumor, but the child continued to have seizures thereafter. Her doctors prescribed Dilantin, an anticonvulsant, and several medications to treat the pain. On April 26, the child was transferred to the Rusk Institute of Rehabilitation Medicine. While there, the child continued to receive Dilantin and was prescribed additional medications including Flagyl and Children's Motrin. On or about May 6, the child developed a rash and fever and was readmitted to Tisch Hospital for treatment, where she was diagnosed with Stevens-Johnson syndrome (SJS), which later progressed into toxic epidermal necrolysis (TEN). Both conditions are characterized by rashes, blisters and large areas of skin peeling off. On May 12, the child was transferred to the burn unit at Cornell Medical Center for further treatment. Over the course of the next 21 days, her condition continued to deteriorate. On June 2, 2004, the child died of TEN, complicated by multiorgan failure.

On May 1, 2006, plaintiffs commenced this wrongful death action against G.D. Searle & Co., Pharmacia Corp., Pharmacia & Upjohn Company, Pfizer (collectively, the Pfizer defendants), and McNeil Consumer & Specialty Pharmaceuticals. On May 9, 2006, plaintiffs filed an amended complaint adding John Doe corporations, physicians and health care providers as parties. Both the initial and first amended complaints alleged that Flagyl and Children's Motrin, manufactured by the named defendants, caused the child to develop SJS/TEN, which ultimately caused her death.

On or about September 4, 2008, plaintiffs retained new counsel. Promptly thereafter, on September 15, the new attorneys moved to amend the first amended complaint to add Dilantin, a drug manufactured by the Pfizer defendants, to the claims already made about Flagyl and Children's Motrin. The proposed second amended complaint did not seek to add any new defendants. The motion to amend was denied, and this appeal ensued.

CPLR 3025 (b) specifies: "A party may amend his pleading ... at any time by leave of court," and "[l]eave shall be freely given upon such terms as may be just." Accordingly, leave to amend a complaint to add an additional theory of liability is generally granted when the defendants were placed on notice of such theory by the allegations in the initial complaint, such that the defendants cannot establish that they will be prejudiced by the amended complaint (Panto v J & M Salvage Co., 157 AD2d 582 [1990]). If the amended complaint includes time-barred claims, these claims are deemed to have been interposed at the time of the initial complaint when the initial complaint gave notice of the series of occurrences to be proved pursuant to the amended complaint (id.; CPLR 203 [f]).

In the initial and amended complaints, plaintiffs' allegations arise out of the child's postoperative treatment from March 31 through June 2, 2004. Both the initial and the first amended complaints specifically alleged facts related to the use of Dilantin, and both complaints noted that "on March 31, 2004 ... [the child's]...

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