Mahon v Pfizer, Inc.

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Mahon v Pfizer, Inc. 2011 NY Slip Op 33121(U) December 1, 2011 Supreme Court, New York County Docket Number: 110511/10 Judge: Jane S. Solomon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK JANE s,sol- PRESENT: COUNTY PART is Justice I -vMOTION SEQ. NO. h (r ; n I p;L7 NUMBEeED Notice of Motlonl Order to Show Cause - Affldavits - Exhiblts ... Anawering Affldavlta - Exhlblta Replying Af f ldavits Cross-Motion: a 0 Yes No Upon the foregoing papers, it is ordered that this motion Dated: /jl - / ' / / - r Check one: 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. J. S C. . REFERENCE SETTLE ORDER/ JUDG. - [* 2] I I SUPREMF, COURT OF THE STATE qF N E W Y O R K COUNTY OF NEW PORK: PART 55 individuaJly and as Parent and Natural Guardias of GRAYSON MAHON, an infant, BRETT MAHON, Index No ' 110511/10 Plaintiffs, DECISION 4 QRDE8 , -against - I FILED PFIZER, ENC, ' Defendant. ---------"'-----?------r"---------------- SOLOMON , J. : DEC 0 2 2011 X I NEW YORK COUNTY CLERK'S OFFICE This is an action to recoVbk damages f o r b i r t h defect 1 I , injuries, seeking recovsty on the theories of negligence, premises liability) striat liability, ultrahazardous a c t i v i t y , willful and wanton misconduct, and loss of servicea. Defendant I Pfizer, Inc. (Pfizer), a Ndw York corporation, moves to dismiss the complaint on the grounds that i t fails to state a cause of action (CPLR 3211[a] [ 7 ] ) and for forum non conveniens (CPLR 327[a]). At oral argument on February 28, 2011, the court issusd an Interim O r d e r directihg limited disaovery on t h e forum Ron conveniens issue. Further argument w a s held on July 25, 2011. B r e t t Mahon ( B r e t t ) is the father of Grayson Mahon (Grayson), an infant (together, the Mahona) . Jann Mahon (Jenn), Brett' 6 wife and Grayson' A mother, was a senior associate scientist employed by P f i z e r . 2007. Jenn became pregnant in December During her pregnancy, she worked at Pfizer's research and development facility in Groton, Connecticut. The facility [* 3] 1 included a test l a b o r a t o r y wherein several hazardous materials I were tested. The Mahons a l J e g e t h a t , while pregnant, Jenn was regularly exposed to a haqardous compolind known by Pfizer to be a "High Reproductive Hazard," but which was h . b e l e d as a " L e a s t I Gsayson was borri with severe physical and Hazardous'' compound. I mental disabilities. I 1 I , I Subsequent to the limited discovery, it wars l e a r n e d t h a t on January 8, 2007, Pfizer employees drafted a Material Safety Data Sheet (Data S h e e t ) regardin9 the compound, which warned: "DANGER . . , Suspected of damaging fertility or the unborn child" (Engman q f i r m a t i o n , Ex. 5) The Mahons argue that Pfizer employees at its N e w York corporate headquartera were in chaige of day to day health and s a f e t y rnatteaf? for the e n t i r e cosnpAny ( s e e , e . g . h a i l s attached to Engman Affirmation, E x . 14 I / & 20). T h e i t responsibilities included designing and implementing Pfizer' s work safety policies (Id., Ex. 6, 12, 16-18, 2 2 ) , hhich would require the review of such documents as the Data S h e e t i n order to implement proper safety guidelines f o r the company. The Mahons argue that, at the time of Jenn's pregnancy, t e n rnontAs after learning of the hazard, Pfizer had not y e t acted on t h e D a t a S h e e t report by assigning the High Reproductive Hazard designation to t h e compound. They claim that the delay was a aubstantial contributing cause of Grayson's injuries. 2 . ... .~ [* 4] I FORUM NON CONVENIENS Pfizer m o v e s ' t s diswiss the complaint f o r forum non conveniens under CPLR 327(a) on the ground that t h e complaint lacks a substantial nexus with New York CPLR 327 (a) provides; When t h e coyrk finds that in the,'interestof substantial justice the action should be heakd in another forum, the c o u r t . . . m a y s t a y or dismiss the a c t i o n in whole or in part on any conditions t h a t may be just. T h e domicile or residence in t h i s s t a t e of any party to the action shall not preclude the c o u r t from staying or dismissing the action. A plaintiff's choice of forufrl is entitled to deference. To establish inconvenience, the defehdant carries the burden to "demonstrate relevant private or public interest faatara which militate against accepting the litigation and the court, after considering and balancing the variods competing factors, must determine in the exercise of its sound discretion whether t o setain jurisdiction o x not': ( I s l a m i c Republic of Iran v. P a h l a v i , / I 62 NY2d 4 7 4 , 4 7 9 [1984]). Faators for aourts to consider include: '\ (1) t h e burden o n 'the N e w York courts, (2) t h e p o t e n t i a l hardship to the defendant . . . (3) the unavailability of an alternative forum in which plaintiff m a y bring suit . . I (4) that b o t h partids to the action are nonresidents, and (5) t h a t the transactibn out of which the cause of action a r o m occurred primarily in a foreign jurisdiction" (Id., at 479). Pfizer argues that N e w York courts have held that the 3 [* 5] I allegation that its executives in New York establish h e a l t h and safety stahdards is ineugficient to establish a substantial nexus w i t h New York. In support, it cites to Wilson v. P f i z e r , I n c . , 20 Misc3d 1 1 0 4 ( A ) Pfizer, (Sup. Ct., NY County, 2008), aff d in A v e r y v. I n c . , 68 AD3d 633 (lst Dept., 2009). In W i l s o n , the plaintiff was a Georgia resident w h o took Lipitor ( a drug \ manufactured by Pfizer in M i c h i g a n ) exalusively in Georgia and Pfizer moved f o r dismissal based was treated by Georgia doctors. on forum non conveniens. The court foufid no nexus with Now York and granted Pfizer s motion. In upholding the decision, the Appellate Division noted: Plaintiffs bare assertion[s] of fraud . . . allegedly committed at; defendant s corporate headquarters in N e w York, are insufficient to crdate a substantial nexus with New York outweighing t h e cmnpellihg reasons for dismissal ( A v e r y , 68 AD3d at 634 [citation & internal quotations omitted]). W i l s o d A v e r y is hot persuasive here. F i r s t , because, unlike in W i l s o n (where a non-affiliated individual elected to take a Pfizer drug prescribed by a non-affiliated physician), the injury alleged here arises from an employee s exposure t o a dangerous substance in a Pfizer facility, under the s a f e t y guidance of Pfizer employees in N e w York. Moreover, the Mahons do not only allege bare assertions of f r a u d , they allege specific, tangible delays and errors in Pfizer s internal operations, stemming from decisions made by its employees at its 4 [* 6] 3 I New York Headquarters. ' These allegatFons a r e sufficiently supported by the limited discovery this court allowed on the subject. The alleged aationa directly,affected how the compound k was labeled in Connectiaut, and have injuries pleaded. direct relationship to t h e Accordingly, there i s a substantial nexus w i t h I New York sufficient to survi& t h i s motion. Pfizer next argues that it would be exposed to undura I hardship because it w o u l d be unable to subpoena several of Jenn and Grayson's physioians, w h o are located in Connecticut, outside df this Court's unpersuasive. subpoena power. This argument is also The cases Pfizer cite$+fduhd New York to be an inconvenient forum w h e r e otit-of-jurisdiction witnesses were in England, India, and s t a t e s a signifioant distance from New York (Georgia a n d California); not Conneckicut. Moreover, P f i z e r doea not establish that any of the Mahons, witnesses are unwilling to appear in N e w York. Finally, its argument that it is unduly burdensome to r e w i r e it t d o b t a i n a commission for aubpoenas is entirely meritless. FAILURE TO STATE CfivSE: OF ACTION P f i z e r move$ to dismiss the third and fourth causes of action for strict liability and ultrahazardous activity. These causes o f action are duplicative of o n e another--a cause of action for ultrahazardous activity is one f o r strict liability (see, e . g . , Doundoukalis v. Town o f Hempstsad, 4 2 NY2d 4 4 0 , 4 4 5 5 [* 7] [1977]). Accgrdingly, the s t r i c t liability cause of a c t i o n is dismissed, but the allegakions mado therein are incorporated i n t o I the ultrahazardous activity cause 4f actiofi. One who engages. in an ultrahazardous or abnormally dangerous activity may be h e l d strictly l i a b l e f o r any harm t o persons or p r o p e r t y resulting from t h a t activity. Determining whether an activity is abnormally dangerous involves multiple factors. New York utilizes the factors found i n the Restatement (2"d) of Torts § 520 as guidance No oqe (Doundoukalis, 42 N Y 2 d , at 448). factor is determinative (Id.), Pfizer argues that the Mahond have failed to sufficiently plead f a c t s in support of t h e cause of action. It cites to several Connecticut eases to'bolster t h i s argument. However, unlike New York, Conndcticut is a fact pleading s t a t e (Connecticut Practice Book S 10-1; Reichenbach v. e a s k a Enterprises, LLC., 105 Conn App 461, 470 [ 2 0 0 8 ] ) . Accordingly, this argument is unperauasive under New York procedural laws. Pfizer a l s o argues t h a t t h e Mahons' allegations are conclusory. support. Again, it c i t b s only to Cqnnecticut caselaw in Once again, in tr fact pleading state, a cause of aotion m a y be dismissed whdre the facts alleged are nothing more than legal conclusions ( s e e , Novamcatrix M e d . Systems, Inc. v . BOC Group, I n c . , 2 2 4 Conn. 210, 215 [1992][dismissal i s proper if "the complaint alleges mere conclusions of law t h a t are 6 [* 8] I - unsupported by the faGta *llaqed"J [emphasis added]). Such i a not the procedure in New York. I I Next, Pfizer argyes ihat the'Mahons have failed to allege that t h e risk could not have been eliminated by the I exercise o f the utmost c a r e , which it claims ie a required i element of the caume of action.' In support, it materially misquotes the Restatement (znd) of this argument is unperauasive. I Torts 5 520.1 Accordingly, Moreover, for its Pfizer's reply memorandum 06 law s t a t e s : "Ssction 520 provides: I An activity is ultrshazardous if it (a) neceasa~ily involved a risk of serious h a m to the person . . . which cannot be eliminated by the exercises of t h e utmost care, and (b) is not a matter of common usage. Restatement (Sgcond) of Torts S: 520. Parts (a) and (b) are b o t h essential elements. See Restatement (Second) of Torts 5 520, cmt. g ( 'In order that an activity m a y be ultrahazardous it is necessary that it satisfy the conditions stated in both Clauses (a) and (b) ) . Section 520 a l s o provides for'additional factors t h a t courts m a y consider in making a determination whether a particular activity is ultrahazardous. But the failure to allege either factors (a) or (b) is fatal to a claim of abnormally dangerous activity. rr (Defendant's R e p l y Memorandum, p. 5[footnote omitted]). Notably, the passages represented as q u o t e s from the Restatement (Second) of T o r t s 5 520, and from comment g to that Bection, cannot be f o u n d in t h e cited text. In fact, t h e indented portion of the t e x t quoted above is a reformatted case commentary describing a 1977 Arkansas Supreme Court decision. The aatual text of 5 520 and cwmnent g are materially different from the quoted words and do not support defendant's argument. 7 [* 9] 1 , a ' misrepresen$ations to this coutt, cagts should be awarded to the I I plaintiffs. I Finally, Pfizer movgs to dismiss the fifth cause of action for willful and w a n t o n misconduct, which seeks punitive damages. Again, it c i t e s to Conneactiqut law which references I that state's f a c t pleadieg'natpre. It a l s o argues t h a t t o allege a claim for willful and w a n t o n negligence, the Mahona must allege that there was intentional conduct that was designed to do harm. This i s incorrect, as "conduct warranting qn award of punitive damages n e e d notIbet!intentionally harmful but m a y consist of actions which Constitute willful or watiton negligence or recklessness" A . IJ. v Long la. burgi-Center, 4 6 AD3d 74, (Ran& I 81 [2nd Dept. , 20071) . ' The Mahons have made such allegationa. Accordingly, the qotion to disiniss is denied. In light'of the foregoing, it hereby is ORDERED t h a t the motion of d&fendant Pfizer, Inc. is granted to the e x t e n t that t h e third cause of action is dismissed US duplicative, andjis otherwise denied, w i t h aosta to the I plaintiffs in the d p u n t of $100. Dated: *hi.f , , 2011 DEC 02 2011

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