Summary Judgment Dismissal Affirmed


















The Appellate Division, Second Department affirmed a lower court’s decision granting summary judgment dismissing the complaint and denying the plaintiff’s cross motion for leave to amend the pleadings to allege a new theory of liability.  Daniel S. Ratner, Esq. and Daryl Paxson, Esq. drafted the appeal papers.  Daniel Lei, Esq. handled the oral argument at the Appellate Division.  The patient suffered from asymptomatic hepatitis B and non-Hodgkin’s lymphoma.  The plaintiff claimed that the defendants’ prescription of Viread, a drug used for preventing reactivation of dormant hepatitis B infections, was ineffective and caused the patient’s liver and kidney failure.  The patient passed away due to organ failure.


On appeal, HPM&B successfully argued that the plaintiff failed to raise a triable issue of fact in opposition to the defendants’ summary judgment motion because the plaintiff’s expert failed to address material aspects of the defendants’ expert’s opinions.  Specifically, the plaintiff’s expert failed to address the defendants’ expert’s opinion that only prolonged use of Viread would cause kidney failure and that the patient’s kidney failure was caused by the patient’s underlying liver failure.  The plaintiff’s expert also failed to address the defendants’ expert’s opinion that the patient’s only treatment option was a liver transplant, for which he was not eligible due to his history of lymphoma.  The plaintiff’s expert further failed to explain how the cited departures of failing to order a clinical evaluation and comprehensive blood work would have increased the patient’s chances of receiving a liver transplant.


As to the issue of amending the pleadings, HPM&B successfully argued that the plaintiff failed to show special and extraordinary circumstances in seeking leave to amend.  We highlighted that the plaintiff knew, or should have known, the facts that formed the basis for the new theory of liability because she was in possession of the medical records.  Additionally, we asserted that the defendants were prejudiced by the plaintiff’s belated cross motion because it was filed in response to the defendants’ motion for summary judgment and after the note of issue.  The Second Department agreed and affirmed the lower court’s decision in its entirety.