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GOTLIN v. LEDERMAN

May 3, 2005.

GARY D. GOTLIN, et al., Plaintiffs,
v.
GILBERT S. LEDERMAN, M.D., et al., Defendants.



The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge

MEMORANDUM AND ORDER

This action is brought on behalf of Italian nationals, all but one of whom are now deceased due to their infliction with various types of cancer, against the physicians who treated them and their employers in the United States. Plaintiffs and their representatives allege that defendants unlawfully induced them through misrepresentations to undergo a radiation procedure developed by defendants and that they forewent other treatment options as a result. Pending before the Court is the motion of defendants*fn1 to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and to dismiss certain claims for failure to state a cause of action upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Additionally, defendants move to strike allegations in the complaint pursuant to Fed.R.Civ.P. 12(f).

FACTS The following facts taken from plaintiffs' complaint are assumed to be true for purposes of this motion. The estates of the deceased plaintiffs are represented by Gary D. Gotlin, the New York State Richmond County Public Administrator. Compl. ¶ 2. Plaintiffs sue the hospitals where they were treated, Staten Island University Hospital ("SIUH"), North Shore-Long Island Jewish Healthcare, Inc. ("North Shore LIJ"), and North Shore-Long Island Jewish Health System, Inc. ("North Shore Health System"),*fn2 and various individuals who are the administrators of those hospitals. Additionally, they sue the individuals who provided medical treatment to plaintiffs, Gilbert S. Lederman, M.D. ("Lederman"), Philip Jay Silverman, M.D. ("Silverman"), Irina Grosman, M.D. ("Grosman") and Salvatore Conte. Id. ¶¶ 5-9. Plaintiffs also sue Joseph Conte, Maria Gelmi-Nourbaha, and Annamaria Persico. Id. ¶¶ 8, 10, 11. Each of those individual defendants is alleged to be "an employee, servant, agent, representative partner and/or joint venturer and/or co-conspirator of defendants" hospitals. See id.

  Plaintiffs allege that in late 2001 or early 2002, defendants created an International Patient Program through which they marketed the Fractionated Stereotactic Radiosurgery ("FSR") cancer treatment method to Europeans and, in particular, Italian nationals. Id. ¶ 31. FSR involves "precision radiation using multiple, finely contoured beams from many different angles directed at the cancer, minimizing radiation to normal healthy tissue. A non-invasive stereotactic frame maintains the body in a stable, reproducible position. A stereotactic body frame secures this position which is painlessly and non-invasively custom-molded about the body." Id. ¶ 32. Plaintiffs allege that defendant physicians and hospitals treated them and hundreds of Italian nationals using this method . Id. ¶ 33. The FSR method was discontinued in late 2003 or early 2004.

  Defendants marketed FSR to plaintiffs and the public at large in various ways, including literature, television, radio, in-person seminars and the Internet. Id. ¶ 36. Plaintiffs allege that those advertisements contained "misleading, fraudulent, deceitful, and shocking claims, statements, and information." Id. ¶ 40. For example, the "Fractionated Stereotactic Body Radiosurgery" marketing booklet stated, "the vast majority of cancer treatments at [SIUH] with Body Radiosurgery — 90 percent — are successful in the targeted area." The booklet also declared success rates for particular cancers such as primary liver cancer and lung carcinomas. Id. ¶ 40. In addition to indicating inaccurate and misleading success rates, literature that defendants disseminated to plaintiffs represented that SIUH had performed "one hundred thousand radiosurgeries!" and its "group of expert physicians has the greatest experience worldwide." Id. ¶ 41(a), (b). Defendants represented FSR therapy as effective in cases "when normal radiation has not been successful." Id. ¶ 41(d). Moreover, the literature stated that the FSR had minimal side effects. Id. ¶ 42. These written materials were translated into Italian and disseminated to plaintiffs through the mail and electronically. Id. ¶ 43.

  In addition to literature, defendants created video advertisements of their product that also contained false and misleading statements about the success rate of FSR. In one video, Lederman, the Director of Radiation Oncology for defendant hospitals, stated, "Many people call [FSR] a treat, not a treatment because of the effectiveness and the lack of toxicity in general." Id. ¶ 46. Defendants issued similar messages about the treatment in Italian television broadcasts and on Internet web sites. Id. ¶¶ 50-54. Plaintiffs allege that they relied on these representations and were induced to seek treatment at defendant hospitals. Id. ¶¶ 56-59.

  Defendants also organized conferences throughout Italy to market the treatment, which the plaintiffs attended. Defendants Lederman, Salvatore Conte, and Gelmi-Nourbaha spoke at the conferences. At those events and elsewhere, Salvatore Conte, who worked at a Naples, Italy office established by defendants, falsely represented himself as a medical doctor and oncologist. Id. ¶¶ 66, 69, 78. Plaintiffs allege that defendants knew or should have known that Conte was neither a medical doctor nor an oncologist. Id. ¶ 70. Moreover, at the conferences Lederman examined medical imaging films of patients in attendance and told them and their families defendants could cure them. Id. ¶ 71. Thereafter, defendants mailed letters from the United States to plaintiffs indicating that they were "accepted" for treatment by defendants and contacted them in Italy by phone with instructions about obtaining treatment. Id. ¶ 72.

  Plaintiffs allege they relied on these representations to their detriment and that defendants "preyed upon the plaintiffs' fears and hopes at their most vulnerable time, when stricken with cancer." Id. ¶ 81. Plaintiffs were deceived into visiting the United States for FSR treatment based on promises that the procedure would help them. Such representations deprived plaintiffs of the opportunity to seek other necessary care and the FSR treatment caused plaintiffs pain and worsened their medical conditions. Id. ¶ 179. Most died shortly after receiving the treatment in a matter of weeks or months. Id. ¶ 85.

  On August 27, 2004, plaintiffs and their representatives filed a complaint alleging violation of New York Business Law §§ 349 and 350; common law fraud; unjust enrichment; hospital and medical negligence; negligent misrepresentation; breach of warranty; medical malpractice; violation of New York State Public Health Law § 2805-d; wrongful death; loss of consortium; violation of 15 U.S.C. § 1125, the Lanham Act; and violation of 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO"). They allege that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1332. Moreover, plaintiffs assert that this Court has supplemental jurisdiction over their state law claims under 28 U.S.C. § 1367.

  Defendants move to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and to dismiss certain claims for failure to state a cause of action upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Additionally, defendants move to strike allegations in the complaint pursuant to Fed.R.Civ.P. 12(f).

  DISCUSSION

  When deciding a motion to dismiss for failure to state a claim for relief under Fed.R.Civ.P. 12(b)(6), a court takes the facts as alleged in the complaint to be true, and must draw all reasonable inferences from those facts in favor of the plaintiff. See Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir. 1989). "[M]otions to dismiss for [lack of] subject matter jurisdiction under Rule 12(b)(1) are reviewed under the same standards as motions to dismiss for failure to state a claim under Rule 12(b)(6)." Walker v. New York, 345 F. Supp. 2d 283, 286 (E.D.N.Y. 2004) (Hurley, J.) (citations omitted). A court must not dismiss a claim "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  I. Subject Matter Jurisdiction

  Defendants contend that this Court lacks diversity jurisdiction over this action. The requirements of 28 U.S.C. § 1332 are met here, namely, that there is complete diversity of citizenship between the parties — plaintiffs are Italian nationals and defendants are United States citizens — and plaintiffs allege the requisite amount in controversy.*fn3 Thus, the Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § ...


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