PELTIER v. Target Therapeutics/a Division of Boston Scientific Corporation, Defendant-Respondent-Appellant.

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Supreme Court, Appellate Division, Fourth Department, New York.

Peggy PELTIER, Individually and as Administratrix of the Estate of Raymond E. Peltier, Deceased, Plaintiff-Appellant-Respondent, v. Ajay K. WAKHLOO, M.D., Guiseppe Lanzino, M.D., L.N. Hopkins, M.D., Walter Grand, M.D., Kaleida Health, Defendants-Respondents, Target Therapeutics/a Division of Boston Scientific Corporation, Defendant-Respondent-Appellant.

Decided: July 01, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND SMITH, JJ. Devorsetz Stinziano Gilberti Heintz & Smith, P.C., Syracuse (Lisa DiPoala Haber of Counsel), and Michael J. McDermott, Cicero, for Plaintiff-Appellant-Respondent. Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Joseph V. McCarthy of Counsel), for Defendant-Respondent Ajay K. Wakhloo, M.D. Damon & Morey LLP, Buffalo (Amy Archer Flaherty of Counsel), for Defendants-Respondents Guiseppe Lanzino, M.D. and Kaleida Health. Eliot Spitzer, Attorney General, Albany (Michael S. Buskus of Counsel), for Defendant-Respondent L.N. Hopkins, M.D. Felt Evans, LLP, Clinton (Kenneth L. Bobrow of Counsel), for Defendant-Respondent-Appellant.

Plaintiff commenced two actions that subsequently were consolidated, seeking damages arising from the death of her husband (decedent).   As against defendants Ajay K. Wakhloo, M.D., Guiseppe Lanzino, M.D., Walter Grand, M.D. and Kaleida Health, plaintiff alleged that decedent died as a result of their negligence and malpractice.   As against defendants Target Therapeutics/A Division of Boston Scientific Corporation (Target) and L.N. Hopkins, M.D., plaintiff alleged, inter alia, that Target defectively designed, manufactured, marketed and sold the catheter used during the medical procedure that resulted in decedent's death and failed to provide adequate warnings with respect to the use of the catheter and that Dr. Hopkins, the principal investigator of an alleged study involving the surgical intervention at issue herein, was negligent in his care and treatment of decedent.   Plaintiff thereafter moved for leave to amend the complaint to assert a claim for punitive damages against all defendant physicians with the exception of Dr. Grand, and against Kaleida Health and Target.   Contrary to the contention of plaintiff, Supreme Court did not abuse its discretion in denying that part of her motion with respect to defendant physicians and Kaleida Health.  “Absent any indication in the record that [the alleged conduct of those defendants] was ‘activated by evil or reprehensible motives' ․, we conclude that ․ plaintiff['s] claims [against those defendants] are insufficient to warrant the imposition of punitive damages” (Spinosa v. Weinstein, 168 A.D.2d 32, 43, 571 N.Y.S.2d 747).   Indeed, “[p]laintiff has made no allegations beyond those of ordinary negligence or malpractice as would constitute the basis for an award of punitive damages” (Gravitt v. Newman, 114 A.D.2d 1000, 1002, 495 N.Y.S.2d 439).   We further conclude, however, that the court did not abuse its discretion in granting that part of plaintiff's motion with respect to Target (cf. Spinosa, 168 A.D.2d at 42-43, 571 N.Y.S.2d 747;  Gravitt, 114 A.D.2d at 1002, 495 N.Y.S.2d 439).

We have considered the remaining contentions of the parties and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: