AVERY v. PFIZER INC (2009)

Order, Supreme Court, New York County (Martin Shulman, J.), entered June 17, 2008, which granted defendant's motion to dismiss plaintiff Charles M. Wilson's complaint on the ground of forum non conveniens, unanimously affirmed, without costs.

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 A.D.2d 143, 717 N.Y.S.2d 593 [2000]; see generally Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984], cert. denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985] ). Plaintiffs' “bare assertion[s]” of fraud (Devore v. Pfizer, Inc., 58 A.D.3d 138, 143, 867 N.Y.S.2d 425 [2008], lv. denied 12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [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, 881 N.Y.S.2d 812 [Sup. Ct., Richmond Co.2009] ). Nor do we find defendant's alleged delay in making this motion sufficient to warrant its denial.