Pitkow v. Lautin

139 A.D.3d 488, 29 N.Y.S.3d 805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 2016
• Docket: 1129 800047/11
• Status: Published

Opinion

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 US 312, 321-322 [2008]; Mitaro v Medtronic, Inc., 73 AD3d 1142 [2d Dept 2010]).

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

Concur — Tom, J.P., Sweeny, Andrias, ManzanetDaniels and Webber, JJ.