New York Appellate Division Reports

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GARFINKEL v. BAYER CORP., 8 A.D.3d 162 [1st Dept 2004]
779 N.Y.S.2d 71
GLORIA GARFINKEL, Plaintiff-Respondent, v. BAYER CORPORATION, ETC.,
Defendant-Appellant, CPW DRUGS INC., ETC., Defendant.
3961, 3961A.
Appellate Division of the Supreme Court of the State of New York,
First Department.
Decided June 22, 2004.

Order, Supreme Court, New York County (Paula J. Omansky, J.), entered
March 9, 2004, which, in this product liability action, granted defendant
Bayer Corporation's motion for leave to reargue its motion for summary
judgment, previously denied in an order of the same court and Justice,
entered November 7, 2003, and, upon reargument, adhered to the original
determination, unanimously affirmed, without costs. Appeal from the
November 7, 2003 order unanimously dismissed, without costs, as
superseded by the appeal from the subsequent order.

Wormser, Kiely, Galef & Jacobs LLP, New York (John T. Morin of
counsel), for appellant.

Gair, Gair, Conason, Steigman & Mackauf, New York (Rhonda E. Kay of
counsel), for respondent.

Before: Nardelli, J.P., Mazzarelli, Andrias, Gonzalez, Sweeny,
JJ.

There are triable issues of fact as to whether the warning label for
defendant Bayer's pharmaceutical product, known as
Page 163
CIPRO, was adequate at
the time that CIPRO was prescribed for plaintiff. The evidence showed
that Bayer was aware of the potential association between CIPRO use and
ruptures of the achilles tendon for at least a year prior to October
1994, when the drug was prescribed for plaintiff, but did not during that
time warn of the potential association. In light of this evidence, a
factual issue was raised as to whether Bayer breached its duty to warn of
all potential dangers in its prescription drugs of which it knew, or, in
the exercise of reasonable care, should have known (see Martin v.
Hacker, 83 N.Y.2d 1, 8).

Plaintiff, by citing a 1996 scientific study indicating that CIPRO
might disproportionately affect the tendons and the deposition testimony
of Bayer's director of drug safety, who admitted that it was possible
that CIPRO caused or contributed to plaintiff's achilles tendon rupture,
raised triable issues of fact as to whether CIPRO caused her achilles
tendon rupture (see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544,
550). Contrary to Bayer's contention, factual issues are also raised as
to whether its failure to warn was causally related to plaintiff's
injury. The record does not permit the conclusion that, had a warning
respecting an association between CIPRO use and achilles tendon rupture
been given, plaintiff's physician would nonetheless have prescribed the
medication or that plaintiff, who evidently owned and consulted her own
copy of the Physician's Desk Reference, would have agreed to take it.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.



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