Ramirez v. Wyeth Laboratories, Inc.

• Decision Date: 08 January 1999
• Citation: 179 Misc.2d 764,686 N.Y.S.2d 602
• Parties: , 1999 N.Y. Slip Op. 99,084 Leidy RAMIREZ, Plaintiff, v. WYETH LABORATORIES, INC., a Subsidiary of American Home Products Corporation, et al., Defendants.
• Court: New York Supreme Court

Page 602

686 N.Y.S.2d 602

179 Misc.2d 764, 1999 N.Y. Slip Op. 99,084

Leidy RAMIREZ, Plaintiff, v. WYETH LABORATORIES, INC., a Subsidiary of American Home Products Corporation, et al., Defendants.

Supreme Court, New York County.

Jan. 8, 1999.

Orrick, Herrington & Sutcliffe, L.L.P., New York City (Stephen H. Foresta of counsel), for Wyeth Laboratories, Inc., and another, defendants.

McAloon & Friedman, P.C., New York City (Stephen York of counsel), for Planned Parenthood of New York City, Inc., defendant.

Sybil Shainwald, New York City (Stephanie O'Connor of counsel), for plaintiff.

STANLEY L. SKLAR, J.

In this product liability and medical malpractice action involving the use of the contraceptive Norplant, defendants Wyeth Laboratories, Inc., the distributor of the Norplant System, and its parent American Home Products Corporation (collectively, "Wyeth"), move for summary judgment pursuant to CPLR 3212.

This action arises out of plaintiff Leidy Ramirez's ("Ramirez") use of the Norplant System, a hormonal contraceptive that involves the subcutaneous insertion of six hormone filled capsules by a healthcare provider, in this case a nurse practitioner, in the upper arm of the patient and provides up to five years of birth control protection.

The verified complaint alleges that in July 1993, at an office of defendant Planned Parenthood of New York City, Inc. ("Planned Parenthood"), six implants comprising the Norplant System were inserted into Ramirez's left arm by Barbara Finney, a nurse practitioner. Finney in 1989 received her New York State certification as a women's health care nurse practitioner which enabled her to write prescriptions, except for controlled substances. Finney EBT pp. 12-14. This certification enabled her to prescribe and evidently to insert and remove Norplant. Finney testified (EBT pp. 51 et seq.) that Wyeth's representatives gave training and training material to her, including a model arm on which to practice insertions and removals. She also indicated (EBT pp. 66-67) that prior to the receipt of the model she never performed any surgical procedures involving incisions of the skin, and had no surgical training. Finney testified (EBT pp. 191-193) that she did not know whether any of the materials warned of certain risks of removal including excessive scarring and chronic pain, that she was unaware of whether any materials provided by Wyeth discussed long term sequelae associated with Norplant removal, and that she never counseled women regarding the long term sequelae. Finney also testified that Planned Parenthood's service provider would assess a patients suitability for Norplant, and that in the plaintiff's case she (Finney) was the provider. EBT p. 70. Finney stated that if a patient had contraindications for Norplant she would consult with Dr. Irvin Rust, the medical director, but that otherwise no one other than the provider would decide whether a patient was a suitable candidate for Norplant. Id. pp. 70-72. Finney further testified that the decision to prescribe and insert Norplant into the plaintiff was Finney's alone. Id. pp. 72-73. Due to various complaints on the part of the plaintiff the Norplant System was subsequently removed by Finney from Ramirez's arm in January and March 1994.

Plaintiff asserts that she suffered from various injuries as a result of the Norplant. The injuries alleged include headaches, weight loss, hair loss, excessive scarring, and permanent damage to the left median brachial cutaneous nerve of the arm, resulting in sensory loss, pain, and weakness in the affected arm.

The verified complaint asserts seven causes of action, five of which are relevant to the instant motion: (1) negligence; (2) strict liability in tort for the manufacturing, marketing, distribution, and sale of a defective product; (3) breach of implied warranty of fitness and merchantability; (4) breach of express warranty of fitness and merchantability; and (5) fraudulent misrepresentation. In essence, Ramirez maintains that the Norplant System was a defective device in that Wyeth failed to properly warn healthcare providers and patients of the risks and side effects associated with its use, including the risk of permanent damage to the nerves in close proximity to the site of implantation, failed to inform healthcare providers of the proper implant site on the upper arm in light of the proximity of nerves in certain parts of the upper arm, and that Wyeth's literature deceptively understated the risk and extent of potential scarring.

According to the medical records plaintiff after insertion of the Norplant capsules complained, inter alia, of pain in her arm which ultimately led to her request to have the capsules removed. Plaintiff maintains that because the removal of several of the capsules was painful, the procedure was terminated and she had to return over a month later to have the remaining capsules removed. Following the removal of the capsules the plaintiff allegedly experienced worsening pain, numbness, and weakness in her arm, in addition to the formation of a keloid scar. According to plaintiff's treating neurologist, Dr. Adam Bender, based on his own examination and the results of an EMG, the patient suffered from a left medial brachial cutaneous neuropathy. Dr. Bender noted that the implant was done over the medial biceps region and that the scar on plaintiff's arm showed that the operative site transversed the medial brachial cutaneous nerve. Dr. Bender concluded that the nerve was irritated during the implantation and was likely resected during the removal. See: Aff in Opp.Exh. B. In November 1997 plaintiff consulted Dr. Michael Bruch, a plastic surgeon, who found her to have hypertrophic and hyperpigmented scars caused by the Norplant surgery, but concluded that she was an inappropriate candidate for scar revision surgery in light of her dark skin predisposed her to develop hypertrophic and hyperpigmented scars. Aff. in Opp., exh. C.

Defendants claim the directions and warnings provided to Planned Parenthood regarding the Norplant System fully and adequately warned of the side effects that plaintiff claims she suffered, and sufficiently instructed the healthcare practitioners as to the proper method of inserting and removing the Norplant capsules.

I. Timeliness of Motion

Before reaching the question of whether summary judgment is appropriate, it must first be determined whether the delay in filing the motion is justified by good cause. Ramirez filed a Note of Issue on September 9, 1997. The instant motion for summary judgment was filed on May 15, 1998. CPLR 3212(a), effective January 1, 1997, states that a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown."

Due to the fact that CPLR 3212(a) was only recently amended to include the 120-day requirement, minimal case law exists as to what constitutes "good cause." Some courts have held that good cause "refers not to the alleged strength of the belated motion but to the reason (i.e., the 'cause') for filing the motion belatedly." John v. Bastien, 178 Misc.2d 664, 681 N.Y.S.2d 456, 458 (CivCt, City of New York Sept. 21, 1998). See, also, Surace v. Lostrappo, N.Y.L.J., Apr. 6, 1998, at 32, col. 2 (Sup.Ct., Nassau Cty.) ("Good cause is a written expression or explanation by the party or his own legal representative evincing a viable, credible reason for delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement"). However, the Appellate Division has stated that in the context of CPLR 3212(a), trial courts should "be afforded wide latitude with respect to determining whether 'good cause' exists for permitting late motions." Rossi v. Arnot Ogden Medical Center, 252 A.D.2d 779, 676 N.Y.S.2d 699, 701 (3d Dept.1998).

Wyeth asserts Ramirez prematurely filed the Note of Issue before the completion of discovery, as Wyeth did not have an opportunity to conduct medical exams of Ramirez by its expert until February 1998. Ramirez counters that because the discovery obtained by Wyeth after the filing of the Note of Issue is irrelevant to the grounds for which it seeks summary judgment, there is no excuse for the late filing of the motion.

The court is convinced that good cause has been shown. As plaintiff acknowledges, the physical examinations of Ramirez agreed to by the parties were not completed until February 1998, and the final deposition in this action was not taken until April 1998. See, O'Connor Aff. at pp 9, 13. Moreover, Ramirez was ordered by another Justice, to whom the case had previously been assigned, to file the Note of Issue and Certificate of Readiness by September 9, 1997 or risk dismissal of the claims. Id. at p 8. In fact, Ramirez states that the Note of Issue and Certificate of Readiness were filed due to the "enormous pressure to place this action on the calendar...." Id. Had Ramirez not faced dismissal of her action, it is most likely the Note of Issue would not have been filed at that time. Accordingly, because the Note of Issue was filed prematurely largely due to the directions of the court, it cannot be said that Wyeth has failed to establish good cause for the late filing of the summary judgment motion. See, Gonzalez v. United Parcel Service, 249 A.D.2d 210, 671 N.Y.S.2d 753, 754 (1st Dept.1998) (trial court properly entertained summary judgment motion, despite its filing more than 120 days after the Note of Issue, since had Note of Issue not been prematurely filed, summary judgment motion would have been within the statutory time frame).

II. Summary Judgment

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). The burden is upon the moving party to make a prima facie showing that...