Pitkow v. Lautin ( 2016 )

Pitkow v Lautin (2016 NY Slip Op 03805)

Pitkow v Lautin

2016 NY Slip Op 03805

Decided on May 12, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 12, 2016
Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, Webber, JJ.

1129 800047/11

[*1]Lisa Pitkow, Plaintiff-Appellant,

v

Everett M. Lautin, M.D., et al., Defendants, Aventis Pharmaceuticals, Inc., et al., Defendants-Respondents.

Massimo & Panetta, P.C., Mineola (Frank C. Panetta of counsel), for appellant.

Troutman Sanders LLP, New York (Eric Rumanek of counsel), for respondents.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered December 9, 2014, which granted the motion of defendants Aventis Pharmaceuticals, Inc. and Sanofi-Aventis U.S., LLC (collectively Sanofi) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action arising from plaintiff's use of Sanofi's product called "Sculptra," used for smoothing facial wrinkles and filling in lost facial fat deposits, the motion court correctly determined that plaintiff's claims against Sanofi are preempted by the Federal Food, Drug and Cosmetics Act, as amended by the Medical Device Amendments (MDA) of 1976 (see 21 USC § 360e). The claims alleged by plaintiff under state law impose requirements that are "different from, or in addition to [the federal] requirement[s]," and relate to either the "safety or effectiveness" of the medical product under the MDA (21 USC § 360k[a][1], [2]; see Riegel v Medtronic, Inc., 552 U.S. 312, 321-322 [2008]; Mitaro v Medtronic, Inc., 73 AD3d 1142 [2d Dept 2010])).

We have considered plaintiff's remaining contentions, including that further discovery should be conducted, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 12, 2016

CLERK