Avery v. Pfizer, Inc.

68 A.D.3d 633, 891 N.Y.2d 369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2009
• Status: Published

Opinion

All of the above plaintiffs, except Charles M. Wilson, have stipulated to a conditional dismissal of their respective complaints based on the court’s reasoning in dismissing Wilson’s complaint, as they are similarly situated to Wilson. Wilson, who allegedly suffered injuries as a result of his use of defendant’s drug Lipitor, is a resident of Georgia; his physician who recommended and prescribed the drug, and on whose recommendation Wilson solely relied, lives in Georgia; Wilson ingested the drug in Georgia and suffered his injuries in Georgia; all of Wilson’s treating physicians are in Georgia; and all of Wilson’s witnesses are in Georgia. Under these circumstances, the court properly granted defendant’s motion (see Nicholson v Pfizer, Inc., 278 AD2d 143 [2000]; see generally Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Plaintiffs’ “bare assertion[s]” of fraud (Devore v Pfizer Inc., 58 AD3d 138, 143 [2008], lv denied 12 NY3d 703 [2009]), allegedly committed at defendant’s corporate headquarters in New York, are insufficient to create a substantial nexus with New York outweighing the compelling reasons for dismissal. We decline to disregard the traditional forum non conveniens factors in favor of a “mass tort litigation” approach (see e.g. Matter of OxyContin II, 23 Misc 3d 974 [Sup Ct, Richmond County 2009]). Nor do we find defendant’s alleged delay in making this motion sufficient to warrant its denial. Concur— Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.