The administrator of Giuseppa Caramanna Bono and her
surviving spouse appealed a judgment against them following various pretrial
orders and a jury verdict. Plaintiffs
argued that defendants fraudulently misrepresented the efficacy of a cancer
treatment, Fractionated Stereotactic Radiosurgery, inducing Bono to
unnecessarily undergo an ineffective and harmful form of radiation therapy.
Most of the claims were properly dismissed, including the
common law fraud claim, which couldn’t be brought separately from a medical
malpractice claim without distinct damages, which weren’t alleged here, as well
as the informed consent claim. The
district court also “faced significant challenges in managing this case because
of plaintiffs' counsel's utter inability or unwillingness to meet his
professional duties,” warranting the imposition of discovery and other
sanctions.
But the court of appeals reversed the summary judgment
dismissal of the GBL §§ 349 & 350 false advertising claims. It was error to dismiss on the ground that the
allegedly deceptive advertising didn’t occur in NY. The deceptively procured services occurred in
NY, even though the alleged deceptive acts occurred in Italy, and the alleged
scheme was ongoing and continued throughout Bono’s receipt of treatment.
Plaintiffs argued
that defendants’ brochures, videos, advertisements, seminars, and internet
sites deceptively marketed and advertised FSR treatment by making unrealistic claims
as to its success rates—greater than 90% in treating pancreatic cancer. The district court held that it couldn’t
assess the truthfulness of these claims without at least some evidence of
falsity.
But plaintiffs’ medical experts did provide evidence on at
least one representation. Though
speaking specifically about another plaintiff (no longer part of the case) who
had been diagnosed with the same unresectable pancreatic cancer as Bono, they
stated that claims of a 94% success rate were misleading “given the universally
poor outcomes for this disease.”
Defendants’ marketing brochures state that such cancers “have been
treated with a very high rate of success [with FSR therapy]. In fact, 94
percent of primary pancreas cancers currently have been successfully controlled
in the treated area with [FSR therapy] at Staten Island University Hospital.
Many included patients who had extensive prior unsuccessful treatment.... Furthermore,
the size of the cancers treated with [FSR therapy] here was, on average, three
times the size [as cancers treated in studies of comparable treatments] and
still we had a dramatically higher success rate [than those other treatments].” The brochures defined “success” at one point
“in a relatively circumscribed manner, including cases in which the cancer
stopped growing or shrunk but did not disappear altogether, but at other points
suggested much broader successes: “possibilities never dreamt before,” “superb
results,” “great effectiveness,” and “superior outcomes.”
The experts stated several times that FSR therapy was
unnecessary, either because it had no “curative potential” for a particular
patient's or because the patient in question “presented with incurable disease”
generally. Such patients were “subjected
to widespread radiation therapy without any chance of benefit.” This implicitly challenged the accuracy of
the brochure’s representations that FSR therapy had achieved “superb results”
in instances in which “normal radiation has not been successful.” The experts did not merely opine that FSR
treatment hadn’t proven effective for those patients, but that defendants
marketed the treatment as having a high rate of success for “hopeless” cases
when patients in fact had incurable cancer.
There were thus genuine issues of fact on material deceptiveness to a
reasonable consumer, and on whether plaintiffs suffered any injuries as a
result of the marketing.
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