Opinion
Index No. 800125/10
11-08-2013
ARLENE SCOZZARO, Plaintiff, v. ALAN MATARASSO, M.D., LAUREN ZEIFMAN, P.A., SYNERON, INC., and JEFFREY WELLS, Defendant.
Decision, Order and
Judgment
JOAN B. LOBIS, J.S.C.:
In Motion Sequence Number 005, Defendant Syneron, Inc. moves for summary judgment on all claims and cross-claims pursuant to Rule 3212 of the Civil Practice Law and Rules. In Motion Sequence Number 006, Jeffrey Wells moves for the same relief. For purposes of this decision, order, and judgment, Motion Sequence Numbers 005 and 006 have been consolidated. Plaintiff Arlene Scozzaro and Defendants Alan Matarasso, M.D., and Lauren Zeifman, P.A., oppose the motions. For the following reasons, the motion is granted in part and denied in part.
This action arises out of a facial treatment performed on Plaintiff on February 27, 2009. In her verified complaint, Plaintiff alleges six causes of action: 1) negligence, 2) medical malpractice, 3) lack of informed consent, 4) negligent hiring, retention, and supervision, 5) negligent misrepresentation, and 6) products liability.
Ms. Scozzaro first contacted Syneron in January of 2009 to express interest regarding treatment with Syneron equipment Ms. Scozzaro was referred to Syneron's New York sales representative, Defendant Jeffrey Wells. Defendant provided the names of several physicians in the New York area that performed "Triniti" treatments using Syneron equipment. He told the Plaintiff that she was a candidate for the treatment. Plaintiff alleges that Mr. Wells offered to treat her at his office. Ms. Scozzaro turned down the procedure because he was a sales representative and not a medical doctor, though he denies offering to treat her. Mr. Wells claimed that the treatment would "help firm, tighten and lift areas around her jaw line and would remove fine wrinkles."
Plaintiff then made an appointment with Dr. Matarasso's office. After a consultation with Ms. Zeifman, Dr. Matarasso's physicians assistant, Plaintiff decided to receive the treatment. On January 30, 2009, Plaintiff received the Triniti treatment from Ms. Zeifman. The treatment used Syneron equipment, specifically the eMax system and the SRA, ST and Matrix IR applicators. The "Triniti E-Max" is advertised as a 3-in-1 impulse light/laser system that corrects skin discoloration, tightens skin, and smooths wrinkles. On February 27, 2009, Plaintiff received a second treatment. Ms. Scozzaro alleges that her injuries occurred during the second treatment.
Ms. Scozzaro claims that she felt pain and burning on her forehead as soon as Ms. Zeifman started the second laser treatment. Ms. Zeifman stopped, applied ice to Ms. Scozzaro's forehead, and continued using the laser on her right cheek. As Ms. Zeifman started treating the cheek, Ms. Scozzaro alleges that she told Ms. Zeifman to stop and screamed "fire." Ms. Zeifman stopped and said, "Don't be a baby." As Ms. Zeifman continued to the left side of the jaw, Ms. Scozzaro again alleges that she screamed for Ms. Zeifman to stop. The Defendant continued the treatment until it was finished. Immediately following the treatment, Plaintiff experienced pain, swelling, and redness in her cheeks. She also had an "indentation" in her right cheek. She was given ice and waited for Ms. Zeifman or Dr. Matarasso to see her. During this time, a large piece of skin began to slough off her right cheek. In the following days, Ms. Scozzaro had scabbing and "pus bags" form on her face, in addition to inflamation and redness. Over the next few weeks, Ms. Scozzaro saw several doctors, including Dr. Matarasso, multiple times. She applied a variety of antibiotic and moisturizing creams, as directed by her doctors, and received further cosmetic treatments. Ms. Scozzaro's injuries include two hypopigmented linear areas on the right cheek - a superior lesion measuring 4cm by .5cm, and a lower lesion that is slightly depressed and measures 1cm by .8cm. On her left upper cheek there is a .5cm by .3cm area that is hypopigmented, along with two areas on the lower cheek, each 1cm in length.
Ms. Scozzaro filed a verified complaint on October 25, 2010, against all Defendants. Syneron and Mr. Wells cross-claimed against Defendants Dr. Matarasso and Ms. Zeifman. Syneron and Mr. Wells claim that any damages alleged in Plaintiff's verified complaint that resulted from an act or failure to act, other than Plaintiff's, were caused by the negligence of Dr. Matarasso and Ms. Zeifman.
Defendants Syneron and Mr. Wells seek contribution and indemnification. Dr. Matarasso and Ms. Zeifman cross-claim against Syneron and Mr. Wells alleging negligence and products liability. Non-moving Defendants also seek indemnification.
Plaintiff argues that Syneron is liable for products liability, negligence for failing to see to the proper training of Defendant Ms. Zeifman, and vicarious liability for any negligence by Mr. Wells pursuant to his position with Syneron. Plaintiff alleges Mr. Wells is also liable independently for actions that exceeded the scope of his employment. Plaintiff alleges that Mr. Wells is liable for negligent misrepresentation of the equipment's capabilities, negligent evaluation and assessment of the Plaintiff's candidacy for treatment as he was not qualified or trained to perform a medical evaluation, and negligence by engagement in the unlawful practice of medicine. Plaintiff also alleges Mr. Wells is liable for misrepresentation and failure to properly advise Plaintiff regarding risks of the "Triniti" procedure and negligent referral of Plaintiff to Dr. Matarasso and Ms. Zeifman, Ms, Scozzaro alleges that Mr. Wells was aware that Ms. Zeifman would perform the procedure and that referral was made notwithstanding significant issues regarding the training, qualifications and experience of both Defendants.
Defendants Dr. Matarasso and Ms. Zeifman argue that triable issues of fact exist as to Syneron's negligence and products liability, and vicarious liability for Mr. Wells, In support of this position, Defendants provide an affidavit of Greg J. Spooner, Ph.D., a developer of lasers, light sources, and optics for medical instrumentation, who identifies defects in the product. Defendants make the following arguments regarding Syneron's liability: the Syneron manufactured ST hand piece malfunctioned and Ms. Zeifman committed no error; Syneron's handpiece was defectively designed; Syneron failed to warn users and consumers of the ST hand piece's potential for burns; and Syneron is vicariously liable for Mr. Well's negligence. Defendants Dr. Matarasso and Ms. Zeifman also address arguments towards Mr. Wells. Defendants argue that Mr. Wells is liable for negligence by offering opinions, judgments and evaluation while acting in a de facto medical role upon which the Plaintiff relied; strict products liability as a non-manufacturing seller; and failure to warn as he had an independent duty to warn the Plaintiff under the facts and circumstances of the case.
The Moving Defendants now seek summary judgment. In considering a motion for summary judgment this Court reviews the record in the light most favorable to the non-moving party. E.g., Dallas-Stephenson v. Waisman, 39 A.D.3d 303. 308 (1st Dep't 2007). The movant must support the motion by affidavit, a copy of the pleadings, and other available proof, including depositions and admissions. C.P.L.R. Rule 3212(b). The affidavit must recite all material facts and show, where Defendant is the movant, that the cause of action has no merit.
This Court may grant the motion if, upon all the papers and proof submitted, it is established that the Court is warranted as a matter of law in directing judgment. Id. It must be denied where facts are shown "sufficient to require a trial of any issue of fact." Id.
The Court first considers Syneron's and Mr. Wells's liability under products liability theories. New York has four theories of liability for products liability claims: express contract, implied contract, negligence, and strict products liability. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106 (1983). The opposing parties claim that Syneron was negligent in its design and manufacture of the product. They also allege that there was a failure to warn regarding the dangers of the product. Defendants Dr. Matarasso and Ms. Zeifman further claim that there was a breach of warranty by Syneron.
This Court finds that material issues of fact exist as to the allegations of negligence and products liability against Syneron. Plaintiff and non-moving Defendants cite to the affidavit of Dr. Spooner as evidence of a design or manufacturing defect. Dr. Spooner claims, among other things, that the ST hand piece used in Triniti procedures has a "cooling architecture" that was not optimally designed, and that the hand piece lacks a skin temperature monitor. In addition, there is potential for manufacturing and service defects as to the calibration of the optical output energy or power setting and the testing of the cooling capacity under thermal load. Non-moving Defendants and Plaintiff also provide an FDA action reprimanding Syneron for improper marketing boasts in support of the failure to warn claim.
Lastly, non-moving Defendants allege that Mr. Wells is liable under a strict products liability theory. This Court finds that Mr. Wells, however, is not liable for negligence or under any products liability theory independent from Syneron, including the allegations of failure to warn or negligence in training. Under Brumbaugh v. CEJJ, Inc. 152 A.D.2d 69, 71 (3d Dep't 1989), entities beyond manufacturers are liable in products liability and negligence actions if they move the product along the stream of commerce to the final user as "sellers, by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation." In Brumbaugh, the Defendant, as the exclusive marketing agent, was the "sole conduit" by which products entered the marketplace including setting prices, selecting distributors, and performing repairs, maintenance, and warranty service. Id. at 71-72.
It is undisputed that Mr. Wells did not have such a role - he was an employee of Syneron who did not set prices, develop or conduct trainings, or perform repairs, maintenance, or warranty service. His role, was to promote his employer's product and coordinate training between Syneron and various clients. Mr. Wells' role in placing the defective product in the stream of commerce is so peripheral to the manufacture and marketing of the product that it would not further the policy considerations of Brumbaugh to find him independently liable. See Galluscip v. Aticp Int'l U.S., Inc., 971 N.Y.S.2d 190, 191-92 (Sup. Ct. Nassau County 2013).
Next, the Court considers the allegation of negligent misrepresentation. Assuming there was a negligent misrepresentation, a Plaintiff can only recover if she can establish that there is a special relationship with the Defendant that has a closer degree of trust than that of an ordinary buyer-seller relationship since there is no liability simply for words negligently spoken. Delcor Lab., Inc. v. Cosmair, Inc., 169 A.D.2d 639-40 (1st Dep't 1991). The bond must be functionally equivalent to contractual privity. Id. at 640. The Court, even when accepting that all allegations in a complaint as true and drawing inferences in a non-moving party's favor, has the authority to evaluate the sufficiency of the special relationship as a matter of law. Id.
The relationship between Ms. Scozzaro and Mr. Wells and between Ms. Scozzaro and Syneron was not a "special relationship." Mr. Wells, an employee of Syneron, met with Ms. Scozzaro on only one occasion. Ms. Scozzaro knew that Mr. Wells was a sales representative and not a doctor. Nor did Mr. Wells hold himself out to be a medical professional. Aside from his promotion of Syneron's product, Mr. Wells made no claims that would imply that he had special knowledge. As there was no special relationship, Syneron and Mr. Wells cannot be liable for negligent misrepresentation whether describing the risks of the product or informing the Plaintiff that she is a good candidate for the treatment. Furthermore, Mr. Wells could not have been the proximate cause of Ms. Scozzaro's injury as a matter of law as Ms. Scozzaro was referred to Dr. Matarasso and Ms. Zeifman prior to the procedure.
The Court now considers the failure to train claim. Dr. Matarasso and Ms. Zeifman allege that Mr. Wells did not properly train them how to use Syneron's equipment. Mr. Wells was not responsible for Dr. Matarasso's or Ms. Zeifman's training. His role did not require him to conduct trainings. There is no allegation that Mr. Wells had conducted trainings in the past or that he had the expertise to conduct such a training. Negligence for failure to train would require that Mr. Wells have a duty to train. As no such duty existed, this Court finds that Mr. Wells was not liable for negligence due to failure to train.
Next, the Court considers the allegations of lack of informed consent. Lack of informed consent claims are statutorily defined. Pub. Health § 2805-d. The law requires persons providing professional treatment or diagnosis to disclose alternatives and reasonably foreseeable risks and benefits involved to the patient to permit the patient to make a knowing evaluation. Id. § 2805-d(1). Causes of action for lack of informed consent are limited to non-emergency procedures or other treatment and include diagnostic procedures that involve invasion or disruption to bodily integrity, Id. § 2805-d(2). To ultimately prevail on a lack of informed consent claim, a claimant must prove that a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis had the patient been fully informed, and the claimant must prove that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought. Id. § 2805-d(3); see also Shkolnik v. Hosp. for Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 355 (1st Dep't 1995).
Mr. Wells is not a physician, dentist, or any sort of medical professional. He had no legal obligation to receive informed consent from Ms. Scozzaro or to disclose any material risks, benefits, and alternatives to a procedure to which the patient was referred. Nor did he provide any professional treatment or diagnosis. Ms. Scozzaro did not treat any of his statements as statements from a medical professional as she was aware that he was a sales representative. In short, there is no viable lack of informed consent claim against Mr. Wells. Nor is Syneron liable as lack of informed consent is "not a theory upon which an injured person may sue the manufacturer for a defective product." Salva v. Blum, 277 A.D.2d 985, 985 (4th Dep't 2000).
Next, the Court considers the claim that Mr. Wells was negligent and unlawfully practiced medicine. New York Education Law Section 6521 defines the practice of medicine as diagnosing, treating, operating, or prescribing for any human disease, pain, injury, deformity or physical condition. At no point did Mr. Wells diagnose, treat, operate, or prescribe for Ms. Scozzaro. Claiming that someone is a good candidate for a treatment and referring the individual to a doctor is not the same as diagnosis or treatment. Furthermore, New York Education Law Section 6521 does not provide for a private cause of action. See N.Y. Educ. § 6511. See also Nassau Neuropsychiatry Soc'y, Inc. v. Adelphi Univ., 18 N.Y.2d 370 (1966). Accordingly, it is
ORDERED that the motion under sequence 5 is granted in part, as to the lack of informed consent and negligent misrepresentation allegations; and it is further
ORDERED that the motion under sequence 6 is granted,
ENTER:
__________________________
JOAN B. LOBIS, J.S.C.
UNITED JUDGMENT
This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 141B.)