Opinion
05-12-2016
Lisa PITKOW, Plaintiff–Appellant, v. Everett M. LAUTIN, M.D., et al., Defendants, Aventis Pharmaceuticals, Inc., et al., Defendants–Respondents.
Massimo & Panetta, P.C., Mineola (Frank C. Panetta of counsel), for appellant. Troutman Sanders LLP, New York (Eric Rumanek of counsel), for respondents.
Massimo & Panetta, P.C., Mineola (Frank C. Panetta of counsel), for appellant.
Troutman Sanders LLP, New York (Eric Rumanek of counsel), for respondents.
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 U.S.C. § 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 U.S.C. § 360k [a][1], [2]; see Riegel v. Medtronic, Inc., 552 U.S. 312, 321–322, 128 S.Ct. 999, 169 L.Ed.2d 892 [2008] ; Mitaro v. Medtronic, Inc., 73 A.D.3d 1142, 900 N.Y.S.2d 899 [2d Dept.2010] ).
We have considered plaintiff's remaining contentions, including that further discovery should be conducted, and find them unavailing.
TOM, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, WEBBER, JJ., concur.