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DETWILER v. BRISTOL-MYERS SQUIBB CO.

April 20, 1995

SUSAN DETWILER and LLOYD DETWILER, Plaintiffs,
v.
BRISTOL-MYERS SQUIBB CO., SURGITEK, INC., MEDICAL ENGINEERING CORP., "21" INTERNATIONAL HOLDINGS, INC., f/k/a KNOLL INTERNATIONAL HOLDINGS INC., Successor by Merger to SCOT-FOAM CORP. and FOAMEX PRODUCTS, INC., FOAMEX, L.P., a Delaware Limited Partnership, DOW CORNING CORP., THE DOW CHEMICAL CO., NORMAN ORENTREICH, M.D., and NORMAN ORENTREICH, M.D., P.C., Defendants.



The opinion of the court was delivered by: LOUIS L. STANTON

 Susan Detwiler sues Dr. Orentreich, *fn1" who administered injections of silicone into her face, for medical malpractice and fraud. *fn2" She sues the other defendants on a variety of theories for injuries allegedly caused by silicone gel breast implants. Her husband asserts a claim for loss of consortium against all defendants.

 Dr. Orentreich now moves to dismiss the medical malpractice claim as time-barred, and the complaint as failing to state a claim for fraud. Plaintiffs cross-move for leave to amend the present Amended Complaint.

 Mrs. Detwiler first sought treatment from Dr. Orentreich in April 1978. (Amended Complaint, P 99.) From then through September 1980, Dr. Orentreich treated her by injecting silicone directly into her facial tissues. (Id. P 100.)

 Mrs. Detwiler alleges that Dr. Orentreich provided her with incomplete and inaccurate information about the risks of the silicone injections. Specifically, she claims he failed to tell her that silicone could cause autoimmune diseases; that her body could reject the silicone; that physical scarring, infection, and pigmentation changes could occur; that the silicone could migrate within her body or shift position; and that silicone had not been approved by the FDA for injection into the human body.

 Mrs. Detwiler also claims that Dr. Orentreich represented that silicone was safe for injection when it was in fact unsafe. (Id. PP 101-02.) She alleges that Dr. Orentreich knew or should have known of the potential risks at the time he treated her. If she had known about the possible complications, Mrs. Detwiler says, she would not have consented to the treatment. (Id. P 104.) The Detwilers filed their complaint on July 2, 1993.

 DISCUSSION

 A. Standards

 In considering a motion to dismiss under Fed. R. Civ. P 12(b)(6), "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2nd Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994) (citations omitted).

 Fed. R. Civ. P. 15(a) requires that leave to amend "be freely granted when justice so requires." A district court "is justified in denying an amendment if the proposed amendment could not withstand a motion to dismiss." Journal Pub. Co. v. American Home Assurance Co., 771 F. Supp. 632, 635 (S.D.N.Y. 1991) (internal quotations omitted).

 B. Medical Malpractice Claim

 Plaintiffs assert a claim against Dr. Orentreich for "professional negligence." The parties agree that the claim is one of medical malpractice. (See Plaintiffs' Memorandum, at 11; Defendants' Memorandum in Support of Motion to Dismiss, at 4-6.)

 Under New York law, a medical malpractice action "must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." N.Y. Civ. Prac. L. & R. 214-a (McKinney 1995). The medical malpractice claim is time-barred ...


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