The Court Decides

The defense filed a motion to dismiss the case, and the attorneys argued their motions before the court.

There are 3 elements that must be satisfied to assert a claim under NY’s General Business Law 349. The plaintiff must show “(1) that the act or practice was consumer-oriented, (2) that the act or practice was misleading in a material respect, and (3) that the plaintiff was injured as a result of the deceptive practice or act.”

The defendant physician argued that the plaintiff had failed to satisfy the 3 elements. Specifically, the defendant argued that the plaintiff had failed to show that the alleged misconduct was “consumer-oriented” because Dr N’s recommendation to use the medication was a ‘single shot transaction’ involving a specific medical treatment that is individual to each patient. The defendant asserted that the plaintiff had failed to show materially deceptive conduct because the plaintiff does not allege that Dr N “made any guarantees, provided her with misleading statistics on success rates, or asserted that there were no risks” to taking the medication. The defense further argued that even though Dr N received money from the drug manufacturer for his studies, the plaintiff failed to allege that the studies were incorrect. The defense asked that the case be dismissed on the grounds that the plaintiff failed to establish a cause of action.

In its decision, the court first noted that in a motion to dismiss “the court must accept the facts alleged as true and determine simply whether the facts alleged fit within any cognizable legal theory.” (It is left to the jury to determine the truthfulness of the facts – the court looks only at the law). The court noted that “whether a representation or an omission, the deceptive practice must be likely to mislead a reasonable consumer acting reasonably under the circumstances.” The plaintiff must prove actual injury to recover under the statue.


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After looking at the plaintiff’s allegations and accepting them as true, the court ultimately decided that the plaintiff had stated a claim under General Business Law 349. “The complaint sufficiently pleads the 3 elements of GBL 349: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.” The court noted that the plaintiff had alleged that Dr N had been paid over 30 times what other doctors in his field were paid by the manufacturer of the medication. “In light of the magnitude of payment,” that Dr N was receiving from the manufacturer, which was “well beyond what could be considered routine or ordinary,” an inference can be drawn that Dr N was part of a marketing campaign that involved many more patients than the plaintiff, said the court.

In addition, the court noted that Dr N had authored numerous funded studies about the medication, but had failed to disclose payments for these not only to the plaintiff but to the public who would rely on clinical studies like this to compare the benefits and risks of different medications.

Finally, the court noted that the plaintiff had claimed injuries as a result, and that she would not have accepted this treatment option had she known of Dr N’s relation to the manufacturer. The court held that she had sufficiently pled the case and denied the defense’s motion to dismiss. The case is proceeding forward.