| SUPREME COURT
OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 26 ----------------------------------------------------------------------------------X JUDITH C. HOCHMAN Plaintiff, -against- NOBELPHARMA AB, NOBELPHARMA U.S.A., INC., NOBEL INDUSTRIES AB, DENNIS TARNOW AND TARNOW, D.D.S., FLETCHER, D.D.S.,ZAMZOK, D.M.D., PC. Defendants ----------------------------------------------------------------------------------X KARLA MOSKOWITZ, J.: |
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| In
this action alleging products liability and dental malpractice, defendants
Nobel Biocare AB d/b/a Nobelpharma AB and Nobel Biocare USA, Inc. d/b/a
Nobelpharma U.S.A., Inc. (hereinafter collectively referred to as “Nobelpharma”)
move for summary judgement on the grounds that some of plaintiff’s claims
are untimely and that the others contain no triable issues of fact. On July 15, 1988, plaintiff, Judith Hochman, first consulted Dr. Tarnow, a dentist, regarding the possibility of using dental implants to replace missing teeth on the bottom right side of her jaw. Dr. Tarnow examined plaintiff and evaluated her physical condition. Based on this examination and evaluation, he formulated an initial plan to put implants and a fixed bridge into the bottom right side of plaintiff’s jaw. Subsequently, plaintiff lost and broke teeth on the bottom left side of her mouth that also required implants. Plaintiff received implants, referred to as “Branemark System” implants. Nobelpharma manufactured and distributed the implant s to dental professionals. Dr. Tarnow testified that he implant the Branemark implants into the plaintiff’s jaw as follows: a) On July 27, 1988, Dr. Tarnow placed three implants in plaintiff’s lower right jaw. b) On September 1, 1988, Dr. Tarnow placed two implants in plaintiff’s lower left jaw. c) On December 15, 1989, Dr. Tarnow placed another implant in plaintiff’s lower right second bicuspid area. d) On December 14, 1991, Dr. Tarnow implanted two additional implants in the rear of plaintiff’s lower right side jaw. e) On January 5, 1994, he put an additional implant into the lower left of plaintiff’s jaw. Intermittently, throughout the relevant period, Dr. Tarnow had to either tighten or replace several of the screws holding plaintiff’s implants. In addition to the problems with the screws, some of plaintiff’s implants fractured. Dr. Tarnow testified that the fractures occurred as follows: a) On or about October 16, 1989, Dr. Tarnow discovered that the middle implant on the lower right side of plaintiff’s jaw had fractured. b) On or about March 12, 1993, plaintiff fractured the interior implant on the lower right side of her jaw. c) Co-defendant dentists noted an additional implant fracture during plaintiff’s visit on June 2, 1994. d) An x-ray taken on July 13, 1994, showed an additional fracture in one of the implants. Plaintiff claims that during the relevant time period, have suffered seven fractures in a total of ten implants implanted in her lower jaw, but she does not specify the dates of the implants or the dates that the fractures occurred. (Pltf. Aff. in Op- p.5) In June, 1994, co-defendant dentists advised plaintiff that she would need a partial removable denture because she no longer had adequate implants to support a fixed bridge. Plaintiff’s last visit to the co-defendant dentists was on July 21, 1994. Plaintiff commenced this action on May 9, 1995. The complaint states four causes of action against Nobelpharma: negligent design and manufacture and failure to warn; breach of warranty; strict products liability and fraud. Plaintiff claims, inter alia, that the implants fractured because Nobelpharma manufactured them from an inferior grade of titanium and that Nobelpharma failed to warn of the problems involved in implanting the Branemark System implants into partially edentulous patients. Defendant contends that plaintiff’s own unique physiology, (she is described as a “bruxer” with a powerful bite), not a manufacturing defect, caused the implants to fracture. In support of the motion for summary judgement, Nobelpharma argues: a) that certain of plaintiff’s claims are barred by the applicable statues of limitations; b) that plaintiff’s negligence claim must be dismissed because Nobelpharma exercised reasonable care in the manufacture and design of the Branemark implants; c) the strict liability claim must be dismissed because plaintiff cannot establish that a defect in the Branemark implants proximately caused her injuries; d) that Nobelpharma provided adequate warnings regarding the dangers of the implants; e) that the breach of warranty claim must be dismissed because the Branemark implants were reasonably fit for their intended purpose; and f) that plaintiff’s allegations of fraud are inadequate to sustain a cause of action for fraud or misrepresentation. In opposition to the motion, plaintiff argues, inter alia, that summary judgment must be denied because Nobelpharma has failed to make a prima facie showing that it is entitled to judgment as a matter of law. STATUTES OF LIMITATIONS A. Negligence and Strict Liability The three year statue of limitations for personal injury caused by the malfunction of a prosthesis implanted or inserted into the plaintiff’s body begins to run from the date of the injury caused by the malfunction, not the date of implantation. Martin v. Edwards Laboratories, Div. of American Hospital Supply Corp., 60 N.Y.2d 417. Upon a motion to dismiss on statute of limitations grounds, plaintiff bears the burden of coming forward with some evidence that the injury occurred less than three years before the suit. Here, Nobelpharma has established, through Dr. Tarnow’s testimony that the fractures occurred in October 1989, March 1993, June 1993 and July 1994. Plaintiff has offered no evidence to rebut this information. Because this action was commenced on May 9, 1995, plaintiff’s claims of negligence and strict liability regarding the October 1989 fracture are time barred because that fracture occurred more than three years before the commencement of this action. B. Breach of Warranty The statue of limitations for plaintiff’s breach of warranty claim is four years measured from Nobelpharma’s tender of delivery of the Branemark implants to the co-defendant dentists. UCC Section 2-725; Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407. In this case, the exact date of tender of delivery of each of the implants is impossible to establish. Accordingly, the court will look to the day before implantation of each of the implants as the latest date that tender could have occurred. Accordingly, plaintiff’s breach of warranty claims for the implants that occurred on July 27, 1988, September 1, 1988 and December 15, 1989 are time barred because tender occurred more than four years before the commencement of this action. SUMMARY JUDGMENT A. Negligence and Strict Products Liability It is well settled that on a motion for summary judgement, the proponent of the motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d. 320; Winegrad v. New Your University Med. Center, 64 N.Y.2d 851. As to those portions of plaintiff’s negligence and strict liability claims alleging that the implants fractured because they were manufactured with an inferior grade of titanium, Nobelpharma has failed to come forward with a scintilla of evidence to rebut the allegations of negligent design and manufacture. Therefore, as to those claims, Nobelpharma has failed to make a prima facie showing that it is entitled to judgement as a matter of law. However, as to those portions of the negligence and strict liability claims alleging failure to warn1, Nobelpharma has, in its reply papers, included several excerpts, that it authored, from brochures and textbooks, circa 1985, that discuss the risks of fractures from mechanical forces. These articles are sufficient to establish Nobelpharma’s prima facie case on this portion of its summary judgment motion. In response, plaintiff submits the deposition testimony of Dr. Bo Rangert, the director of clinical research for Nobelpharma, in which Dr. Rangert states that, in 1988, the use of implants in partially edentulous patients was experimental. Plaintiff also submits the deposition testimony of Dr. Dennis Tarnow, the dentist who performed the implantations into plaintiff’s mouth. Dr. Tarnow testified that, prior to July, 1988, the start of plaintiff’s treatment, no representative from Nobelpharma advised him that the use of the Branemark implant system in partially edentulous patients was experimental. Moreover, he testified that it was not until 1994 to ‘95 or ‘96 that Nobelpharma advised him that, in partially edentulous patients, there was an increased risk of implant fracture with using implants in a straight line configuration in the molar region of the mouth. (Tarnow Dep, Def. Ex. C, p. 315) In addition, plaintiff submits the affidavit of its expert, Dr. Gerald Niznick, in which Dr. Niznick opines that both the use of grade one titanium and implantation in a straight line configuration are contributing factors in the fracture rate when Branemark implants are used for partially edentulous patients. A manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries. Liriano v. Hobart, Corp. 92 N.Y.2d 232, Codling v. Paglia, 32 NY2d 330. A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product. Liriano v. Hobart, Corp., supra; Codling v. Paglia, supra. A manufacturer has a duty to warn against latent dangers resulting from forseeable uses of its product of which it knew or should have known. Rastelli v. Goodyear Tire & Rubber Co., 79 NY2d 850. Warnings for commodities such as dental implants are intended for the dentist or oral surgeon whose duty it is to balance the risks and benefits of using implants and of the various implant systems available. The dentist or oral surgeon acts as the “informed intermediary” (See, Martin v. Hacker, 83NY2d 1; Wolfgruber v. Upjohn Co, 72 AD2d 59, aff’d 52 NY2d 768) between the manufacturer and the patient and, thus, the manufacturer’s duty to caution against risks involved in using the product is fulfilled by giving adequate warning through the dentist or oral surgeon, not directly to the patient. (See, Wolfgruber v. Upjohn, Co., supra). the warning must provide sufficient information to that category of prescribing dentists who may be expected to have the least knowledge and experience with the implant. (See, Martin v. Hacker, supra; Lindsay v. Ortho Pharm. Corp., 6327 F. 2d 87 [2d Ctr. 1980]) “The adequacy of the instruction or warning is generally a question of fact to be determined at trial...and is not ordinarily susceptible to the drastic remedy of summary judgment.” Bukowski v. Coopervision, Inc., 185 AD2d 31; Johnson v. Johnson Chem. Co., 183 AD2d 64. The factors to be considered in resolving this question include whether the warning was clear, accurate and consistent and whether it portrays with sufficient intensity the risk involved in using the product. See, martin v. Hacker, supra. Here, Dr. Tarnow contends that he did not receive warning material from Nobelpharma regarding the use of the Branemark implants in partially edentulous patients until at least 1994. However, Nobelpharma argues that the material was available and included in textbooks in 1985. Accordingly, it is for the jury to decide whether Nobelpharma adequately warned dentists regarding the use of Branemark implants in partially edentulous patients. C. Fraud and Misrepresentation The courts in this state do not recognize a separate cause action based on fraud for a manufacturer’s failure to disclose that the product was not suited for its intended use unless the misconduct complained of in the fraud cause of action is different from the conduct complained of in the manufacture and marketing of the product. New York Pattern Jury Instructions, Vol. 1A, Section 2;120, p. 567 (2000). See. New York Seven-Up Bottling Col, v. Dow, 96 A.D.2d 1051, aff’d 61 N.Y.2d 828 (where the allegations of fraud are only incidental to another cause of action, the fraud statute of limitations can not be invoked). In her cause of action for fraud, plaintiff alleges that Nobelpharma made false representations that the Branemark implants were safe and effective for their intended use and that Nobelpharma concealed that the implants were prone to fracture. The fraud complained of here is merely incidental to plaintiff’s claims of strict liability, negligence and breach of warranty. Plaintiff’s fraud cause of action does not identify conduct by Nobelpharma that is different from the conduct alleged in the other causes of action. Nor does plaintiff claim that her damages based on the fraud are different from the damages she has claimed based on the other causes of action. Accordingly, plaintiff’s fourth cause of action sounding in fraud and misrepresentation is dismissed. Accordingly, defendant Nobelpharma’s motion for summary judgment is granted to the extent that plaintiff’s fourth cause of action for fraud against Nobelpharma is dismissed. Additionally, plaintiff’s claims of negligence and strict liability as to the October 1989 fracture are dismissed as time barred and plaintiff’s breach of warranty claims for the implants that occurred on July 27, 1988, September 1, 1988 and December 15, 1989 are time barred. in all other respects defendant Nobelpharma’s motion for summary judgment is denied. The complaint is deemed amended accordingly. The foregoing is the decision and order of the court. Copies of this decision and order have been sent to the attorneys for all parties before filing. |
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| 1 Where liability is predicated on failure to warn, New York views negligence and strict liability as equivalent. Martin v. Hacker, 83 N.Y.2d 1; Wolfgruber v. Upjohn, 72 AD2d 59; aff’d 52 N.Y.2d 768. | ||
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