Touting unnecessary cancer treatment could be deceptive trade practice

Gotlin ex rel. County of Richmond v. Lederman, 2012 WL 1506024 (2d Cir.)

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.