Vaccaro v. Squibb Corp.

• Decision Date: 22 December 1980
• Citation: 52 N.Y.2d 809,418 N.E.2d 386,436 N.Y.S.2d 871
• Parties: , 418 N.E.2d 386 Martha VACCARO, an Infant, by Her Father and Natural Guardian, Juan Vaccaro, et al., Respondents, v. SQUIBB CORPORATION et al., Appellants, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 871

436 N.Y.S.2d 871

52 N.Y.2d 809, 418 N.E.2d 386

Martha VACCARO, an Infant, by Her Father and Natural Guardian, Juan Vaccaro, et al., Respondents, v. SQUIBB CORPORATION et al., Appellants, et al., Defendant.

Court of Appeals of New York.

Dec. 22, 1980.

Joseph M. Costello, Robert C. Johnston, Howard L. Dorfman and James J. Girvan, New York City, for Squibb Corp. and another, appellants.

Norman Bard, Brooklyn, Anthony L. Schiavetti, New York City and Sandra Krevitsky, Lake Success, for Emil E. Maffucci, appellant.

Alfred S. Julien and William D. Fireman, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 71 A.D.2d 270, 422 N.Y.S.2d 679, insofar as appealed from, should be reversed, with costs, and the motions of defendants-appellants to dismiss the first through the ninth cause of action set forth in the complaint in Action No. 2 should be granted (cf. Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64; see Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807).

We do not read the complaint as setting forth a cause of action by the mother for independent physical injuries. The theory of recovery on which the dissenter would rely was not addressed by either court below or argued by the parties in our court. Insofar as the mother seeks recovery the case has been heretofore treated as presenting only the legal question whether in the circumstances she is entitled to recover for emotional and psychic harm.

FUCHSBERG, Judge (dissenting).

This suit involves a mother to whom, during the course of her pregnancy, Delalutin, a drug manufactured and marketed by the defendants Squibb, was administered by the defendant doctor. The baby was born without limbs and with other deformities, all alleged to have been produced by the drug. This action, sounding essentially in medical malpractice and strict products liability, was brought by the mother and the father to recover for what in both cases may be categorized as emotional injuries and in the case of the mother, for physical injuries as well.

The matter is now here on appeal from an order of the Appellate Division, which, by a divided court, modified an order of Special Term denying a motion to dismiss pursuant to CPLR 3211 (subd. (a), par 7). On such a motion, of course, the court must both assume the truth of the charges made (Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 236 N.E.2d 634) and favor the pleader with every inference that might be drawn (Westhill Exports v. Pope, 12 N.Y.2d 491, 496, 240 N.Y.S.2d 961, 191 N.E.2d 447). For practical purposes, the effect of the Appellate Division's modification was to dismiss the husband's case and save that of the wife. On the present appeal, our court would dismiss as to the wife too.

Since there is no present disposition on the part of the majority of the court to roll back our repeated refusal to recognize a right to recover for mental and emotional injuries experienced by a "bystander" as a consequence of direct injuries to another, no matter how close (see Howard v. Lecher, 42 N.Y.2d 109, 112, 397 N.Y.S.2d 363, 366 N.E.2d 64, citing Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419), I turn to the mother's case alone. ^* It would seem impossible to deny that defendants owed a duty directly to her. She was a patient of the doctor. She was the consumer of the implicated drug, it having actually been injected into her body. And she suffered the physical effect it had on the fetus and herself while the baby was still unborn.

Yet, the court, in dismissing, despite cases like Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, takes the position that her injuries were all subjective in nature and, here,...