(1) Cross appeals from an amended order of the Supreme Court (Kavanagh, J), entered July 8, 2003 in Ulster County, which, inter alia, partially granted defendant Joseph W Dryer’s motion to preclude plaintiffs from offering certain evidenсe and to strike certain portions of the complaint, and (2) appeal from an order of said cоurt, entered December 1, 2003 in Ulster County, which denied said defendant’s motion for reargument.
On January 30, 1996, plaintiff Grace Cutroneo (hereinafter
Shortly thereafter, plaintiff and her husband filed a complaint against Dryer for malpractice and against Synthes for products liability. In this complaint, plaintiffs also asserted that both defendants failed tо inform her that rod failure was a risk of the initial surgery. During discovery, after both defendants requested that the subject rod be produced for testing, plaintiffs’ attorney learned that their expert had died and that the rod had been lost.
Citing the inability to have their own experts test the rod, defendants each moved to strike the complaint. Supremе Court partially granted the applications by dismissing all claims regarding the rod. Although the court noted that, the loss оf the rod had been inadvertent, it was nonetheless persuaded by the opinions of defendants’ experts that physical examination and testing of it was the only method by which the true cause of the fracture could be determined. These experts also averred that photographs of the rod and the written report of plaintiffs’ dеceased expert were insufficient for this purpose. Defendants theorized that plaintiffs heavy smoking, despite instructions to the contrary, had impeded the process of healing and that the lack of bone fusion, with resultant stress on the rod, was the most likely cause of its failure, not any defect from improper notching. Having beеn deprived of an opportunity to prove this defense, defendants prevailed in their argument that dismissal was thе only appropriate remedy.
As to the failure to warn claim, Supreme Court found that the printed materiаls provided by Synthes with the rod adequately advised physicians to avoid notching and thus, as to Synthes, the complaint wаs dismissed in its entirety. Supreme Court refused to dismiss the failure to warn cause of action against Dryer, finding a question of fact as to whether this warning had been communicated to plaintiff in order to obtain her
First, we are unpersuaded by plaintiffs’ argument that Supreme Court abused its discretion in dismissing all claims relating to the missing brоken rod. Contrary to plaintiffs’ contention, dismissals for lost evidence are not limited solely to instances of intentional spoliation. We have recently held that the sanction of dismissal is “appropriate for the negligent disposal of evidence deemed crucial to the underlying action when the adversary had not beеn given an opportunity for inspection” (Puccia v Farley,
Next, we find no error in Supreme Court’s determination regarding the failure to warn claim. Where the risks of а medical device are thoroughly disclosed to the treating physician, the manufacturer is insulated from liability fоr a failure to warn the patient of same (see Banker v Hoehn,
Finally, given plaintiff’s contention that Dryer never even met with her prior to the first surgery, there is clearly a question of fact as to whether he discussed with her the possibility that the rod, once implanted, might break. Thus, Supreme Court properly refused to dismiss thаt cause of action which alleges a lack of informed consent as against Dryer. Since there is no appeal from a motion to reargue, Dryer’s appeal from same must be dismissed.
Notes
We find no merit in plaintiffs’ claim that Synthes’s summary judgment motion was untimely as it complied with Supreme Court’s verbal scheduling order.