Baran v. Swift

NEW YORK COUNTY
Civil Practice

New York Law Journal

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Justice Alice Schlesinger

Plaintiffs moved to amend a complaint to add language providing a predicate for punitive damages claims in this medical malpractice and products liability suit. While the "Sculptra" defendants—Sanofi-Aventis and Aventis Pharmaceuticals—disputed the allegations, they did not object to the requested relief. The plastic surgeon who administered Sculptra to patient Baran objected, with counsel arguing plaintiffs did not have a viable claim for punitive damages. Plaintiffs alleged the drug was "illegally" marketed by the Sculptra defendants, knowing the drug was unsafe for injection into non-HIV people. Counsel claimed the use of the drug "off-label" for non-HIV patients could be considered reckless or wanton by a jury. Plaintiffs also argued the doctor modified Baran's records, and attempted to cover-up his own deficiencies. The court noted the actual query was if the allegations sounded like outrageous, reckless behavior, rather than mere negligent conduct. It granted the motion, permitted the proposed amended complaint to be substituted as discovery is in its early stages, and on-going, but without prejudice to defendants' rights to move to strike when discovery was completed.

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