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Heckstall v. Pincus

Supreme Court of New York, Appellate Division, First Department

June 16, 2005, Decided; June 16, 2005, Entered

6065

Opinion

 [*204]   [**446]  Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered July 12, 2004, which denied defendants' motions for summary judgment, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

This action was commenced to recover damages for wrongful death allegedly resulting from decedent's consumption of two tablets of Bupropion, prescribed by defendant physician as a smoking cessation aid. Recovery is sought: (1) against defendant Pincus for lack of informed consent and medical malpractice; and (2) against defendant Glaxo, in strict liability and negligence, for failure to warn, breach of warranty [***2]  and design defect.

The IAS court denied defendants' respective motions for summary judgment, [**447]  finding several disputed, material issues of fact, including: (1) the cause of death, (2) whether sufficient warnings were provided, and (3) whether Dr. Pincus departed from accepted medical practice. Regardless of these disputed facts, however, to prevail against Glaxo, plaintiff must tender evidence in admissible form demonstrating "general causation," i.e., that Bupropion can cause an arrhythmia, and also "specific causation," i.e., that decedent's ingestion of two doses of Bupropion created or aggravated the arrhythmia that caused her death (see DeVito v SmithKline Beecham Corp. d/b/a GlaxoSmithKline, 2004 US Dist LEXIS 27374, *5 [ND NY, Nov. 29, 2004]).

Similarly, to succeed on claims against Dr. Pincus, plaintiff must show that there was a causal link between the prescription and the death (see Pauling v Orentreich Med. Group, 14 AD3d 357, 787 NYS2d 311 [2005], lv denied 4 NY3d 710, 830 NE2d 1146, 797 NYS2d 817 [2005]; Koeppel v Park, 228 AD2d 288, 289-290, 644 NYS2d 210 [1996]). [***3]  

The IAS court should have granted the summary judgment motions and dismissed this action. The record evidence demonstrates that defendants met their burden to establish a lack of causation and that plaintiff failed to adequately show causation. Plaintiff's expert opinions are conclusory or rely upon a novel theory of causation that does not satisfy the Frye rule (Frye v United States, 54 App DC 46, 293 F 1013 [DC Cir 1923]; Marsh v Smyth, 12 AD3d 307, 785 NYS2d 440 [2004]).

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19 A.D.3d 203 *; 797 N.Y.S.2d 445 **; 2005 N.Y. App. Div. LEXIS 6717 ***

Scott Heckstall,as Administrator of the Estate of Valerie Heckstall, Also Known as Valarie Heckstall, Deceased, Respondent, v Susan Pincus, M.D., et al., Appellants.

Prior History:  [***1] Heckstall v. Pincus, 2005 NY App Div LEXIS 3176 (1st Dept, Mar. 17, 2005)

CORE TERMS

causation, arrhythmia, defendants', cause of death, no evidence, motions, summary judgment motion, scientific community, adverse effect, issue of fact, demonstrates, aggravate, cessation, ingestion, reactions, smoking, studied, warn

Evidence, Testimony, Expert Witnesses, General Overview, Torts, Elements, Causation