The opinion of the court was delivered by: Glasser, United States District Judge
This action is brought on behalf of Italian nationals, all of whom are now deceased due to their infliction with various types of cancer, against hospitals, administrators and physicians who treated them in the United States. Plaintiffs allege that defendants unlawfully induced them through misrepresentations to undergo a radiation procedure developed by defendants and that they forwent other treatment options as a result.
In a related case, the Court decided a similar motion to dismiss. (See Gotlin v. Lederman, 367 F.Supp.2d 349 (E.D.N.Y.2005) (Glasser, J.) (hereinafter "Gotlin I")). Here, new plaintiffs bring claims arising from the same or similar factual circumstances. Indeed, as the parties admitted in oral argument, this case and that one are indistinguishable. (Transcript, 04-07-2006, 23:13-24:3). The estates of the deceased plaintiffs are represented by Gary D. Gotlin, the New York State Richmond County Public Administrator. Plaintiffs sue the hospitals where they were treated, including, 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 LIJ-HS"), and various individuals who are administrators, executives or board members of those hospitals (collectively "Hospital Defendants").*fn1
They also sue individuals who encouraged plaintiffs to undergo or provided medical treatment. Those individuals include Gilbert S. Lederman, M.D. ("Lederman") and his professional corporation, Gilbert Lederman, M.D., P.C. ("Lederman PC"), Philip Jay Silverman, M.D. ("Silverman"), and Irina Grosman, M.D. ("Grosman") (collectively "Doctor Defendants"). The body of the Amended Complaint also describes the actions of Salvatore Conte ("Salvatore"),*fn2 an alleged agent of defendants who purportedly falsely held himself out to be an oncologist while promoting the treatment to prospective patients in Italy (Am. Compl. ¶¶ 51, 61, 63). Plaintiffs also sue other individuals, each of whom they allege was an "employee, servant, agent, representative partner and/or joint venturer and/or co-conspirator of the defendants."*fn3
Pending before the Court is a motion pursuant to 12(b)(6) to dismiss the RICO and common law fraud claims in the Amended Complaint (attached as "Ex. B" to Sola Decl.). Defendants also move to dismiss certain other claims of particular plaintiffs because they fall outside of the applicable statutes of limitations.*fn4
The relevant facts from the Amended Complaint are recited here. The Amended Complaint alleges that in late 2001 or early 2002, defendants launched an international patient program marketing Fractionated Stereotactic Radiosurgery ("FSR") treatment for various types of cancer.*fn5 (Am. Compl. ¶ 28). Plaintiffs allege that the defendants acted in concert and "promoted, marketed, and advertised their...treatment to Italian nationals in Italy..." (¶ 32). As a consequence, all plaintiffs participated in FSR treatments between 2001 and 2003. (¶ 30).
Defendants are accused of having "lured and enticed patients...by false fraudulent and deceitful advertisements and misrepresentations." (¶ 34). The Amended Complaint recites from pamphlets, video advertisements, live conferences and other material produced by defendants a litany of claims about the FSR treatment that plaintiffs assert are "false fraudulent, misleading, and shocking" (¶¶ 37-56). For example, plaintiffs proffer that Lederman, then Director of Radiation and Oncology for defendant hospitals, created and disseminated a videotape touting a "90% success rate" for the surgery. (¶¶ 44, 45). Plaintiffs assert that defendants placed ads on both television and the internet to induce Italian cancer patients to submit a CT scan and 100 Euros to an agent of the defendants who would evaluate their cases. (¶¶ 48-51). Plaintiffs assert that defendants conducted seminars where they provided false information on the success rates of the surgeries, and that defendants Lederman, Nourbaha and Salvatore all participated. (¶¶ 57-64). At some of these conferences, Lederman purportedly stated that he could "cure" them. (¶ 68). Finally, defendants were sent information after acceptance stating that their cases were treatable. (¶¶ 76-77).
Plaintiffs assert that they reasonably relied upon the medical expertise of defendants, and were induced to pay $17,500 ("Fee") per person for the FSR treatment. (¶ 56). Plaintiffs contend that the defendants were grossly negligent in not verifying the truth of the claims made in their promotional literature; that they failed to use reasonable care in the employment, training, supervision, and retention of those defendants engaged in marketing the services; that they induced plaintiffs to undertake this "futile, unnecessary, and negligent treatment," while failing to adequately evaluate the patients or perform their own pathology studies; that they failed to obtain informed consent from their patients by not alerting plaintiffs to the benefits, risks, and alternatives regarding proposed treatments; that as a consequence, the patients suffered "increased fatigue, weakness, nausea, vomiting, and pain...after each administration" of FSR; that the hospital staff concealed their deteriorating conditions from them; that the "defendants' actions deprived the patients...from obtaining...necessary and appropriate care...;" that the majority of the plaintiffs died shortly after treatment, and that plaintiffs' deaths "were hastened by the treatment" (¶¶ 83-128).
In a sprawling, 73-page Amended Complaint containing numerous redundancies, plaintiffs allege eight causes of action against the defendants.
Count I alleges violations of the N.Y.G.B.L. §§ 349 & 350, because during the years in question the defendants allegedly engaged in deceptive acts and practices in furnishing and falsely advertising their FSR treatment, inducing plaintiffs to participate in that care, causing them to lose an opportunity to receive appropriate treatment elsewhere, decreasing their probability of survival and/or quality of life. (Am. Compl. ¶¶ 135-143).
Count II alleges common law fraud. (Am. Compl. ¶¶ 144-156). Plaintiffs assert that they reasonably relied upon the "systematic dissemination of misinformation and promotions of false hope designed to lure vulnerable cancer patients," paying $17,500 for the treatment. Plaintiffs assert that the following statements, among others, were false:
"Indeed, the vast majority of cancer treatments at Staten Island University Hospital with Body Radiosurgery--90 percent--are successful in the targeted area." (¶ 147). "The vast majority of cancers (primary as well as metastatic) treated at Staten Island University Hospital are treated successfully in the targeted area--meaning cessation of growth, shrinkage or disappearance of the cancer." (Id.). "Many patients were so-called 'hopeless cases' before coming to Staten Island University Hospital." (Id.).
The Amended Complaint also recites success rates for various cancer treatments that it characterizes as outrageous, misleading and false representations, including success rates for liver cancers, liver metastases, primary lung carcinomas, pulmonary lung metastases, primary pancreas cancers, and other abdominal tumors at or above 88 percent for the targeted areas. (Id.).
Some of the statements from a videotape disseminated by defendants call the treatment "non-invasive," "highly successful," and offering "great hope to those who previously thought there was none." (¶ 148). Plaintiffs contend they relied upon these and similar statements in obtaining treatment and seek the return of their Fee as well as punitive damages and attorney's fees.
Count III alleges hospital and medical negligence. This count alleges that SIUH, North Shore-LIJ and North Shore-HS "failed, neglected, and/or intentionally refused to use reasonable care in the employment, training supervision, and the retention of those defendants engaging in the marketing, selling, and administering of [FSR]." They also allege that the defendants "refused to conduct an investigation of the efficacy of administering [FSR]," particularly given the high rate of deaths after treatment. (Am. Compl. ¶¶ 157-164).
Count IV alleges medical malpractice against defendants Lederman, Lederman P.C., Silverman, and Grosman. Allegedly, these doctors either worked with or for the defendant hospitals and they administered medical services and treatments to plaintiffs. They allegedly "failed to exercise the knowledge, skill and diligence which a physician should have possessed and exercised," resulting in a failure to properly diagnose the plaintiff's conditions or provide requisite tests. They also allege that the Doctor Defendants failed to obtain informed consent form the patients regarding their treatments. As a result of this negligence, plaintiffs request $10,000,000 each in damages, including punitives. (Am. Compl. ¶¶ 165-208).
Count V asserts violations of N.Y.Pub. He. Law § 2805-d. Plaintiffs assert that defendants failed to disclose alternatives and the reasonably foreseeable benefits and risks of FSR treatment in a manner that would permit plaintiff decedents to give informed consent. Plaintiffs assert that no reasonable person would have undergone these services had they been fully informed of the relevant facts, and that their lack of informed consent was a proximate cause of their undergoing treatment and its resultant harms. They request $10,000,000 each and punitives for this count. (Am. Compl. ¶¶ 209-218).
Count VI asserts wrongful death action on behalf of the "heirs and distributees of the decedents," seeking $10,000,000 and punitive ...