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noting that the doctrine of informed consent has been codified in § 2805-d of the New York Public Health Law and stating the necessary elements to establish a cause of action for medical malpractice based lack of informed consent
Summary of this case from Nemcik v. U.S.Opinion
99Civ. 3415(GBD)
November 18, 2003
MEMORANDUM OPINION ORDER
Plaintiff, by his mother and natural guardian Charisse Johnson, brings this suit against defendants alleging violations of his equal protection and due process rights under the Fourteenth Amendment as well as violations of New York State law. Defendants filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, defendants' motions to dismiss are granted in part and denied in part.
I. Background
Plaintiff Isaac Johnson, an African American minor, participated in a research study conducted by psychiatrists and other scientists of Columbia University and the New York State Psychiatric Institute ("NYSPI"). The study, funded in part by the Leon Lowenstein Foundation, a not-for-profit corporation, involved younger male siblings of adjudicated male juvenile offenders and was designed to identify medical, neurological and other risk factors for aggressive and antisocial behavior. Plaintiff's older brother was a convicted juvenile offender. The complaint alleges that the City of New York (the "City"), acting through its Department of Probation and the Family Court Division of the New York City Law Department, released the records of plaintiffs older brother through an established practice, custom or policy in violation of plaintiff's due process rights and his right to privacy. Through this practice, plaintiff claims that defendants obtained his name and other private information and were able to contact him and invite him to participate in the study.
Plaintiff alleges that as a participant in the study, he was subjected to numerous tests including being administered a single dose of fenfluramine hydrochloride from which plaintiff claims that he suffered severe physical and emotional harm. Plaintiff's Third Amended Complaint raises four federal claims and two pendant state law claims. The first claim alleges that the defendants, by targeting African-American and Hispanic male children and specifically excluding White children for the study, deprived plaintiff of his equal protection rights under the Fourteenth Amendment. Plaintiff's second claim alleges that municipal defendant City of New York has a practice, custom or policy of releasing records in violation of plaintiff's privacy rights in violation of 42 U.S.C. § 1983 ("1983"). Plaintiff's third claim asserts due process violations under § 1983 against the City Defendants for releasing information on plaintiff's older brother "without seeking plaintiff's prior informed consent for said release, and giving him an opportunity to be heard." Complaint at 11, ¶ 62. Plaintiff's fourth claim alleges that the defendants conspired to bring about the selective and discriminatory oral administration of fenfluramine to African-American and Hispanic children depriving plaintiff of equal protection or equal privileges and immunities in violation of his constitutional rights under 42 U.S.C. § 1985(3) ("§ 1985"). Plaintiff fifth claim asserts state law violations of medical malpractice against defendants Pine, Shaffer, Mann, Coplan and Parsons. Plaintiff's sixth and final claim alleges negligence and breach of statutory duty of care against defendants Pine, Wasserman, Mann, Coplan, Parsons, Bruder and Cooper.
Defendants argue that fenfluramine hydrochloride allows for the measurement of serontonin, a hormone associated with mood and behavior and in particular, aggressive or antisocial behavior, in the brain.
The individually named defendants under this cause of action include Daniel Pine, Gail Wasserman, David Shaffer, J. John Mann, Jeremy Coplan, Brace Parsons, Gerard Bruder and Thomas B. Cooper (collectively, the "Scientists") as well as Peter Reinharz, Robert Stone and Gretchen Rauch (collectively with the City of New York, "City Defendants").
II. Discussion
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint where the complaint "fail[s] . . . to state a claim upon which relief can be granted[.]" FED. R. Civ. P. 12(b)(6). In reviewing a motion to dismiss, this Court accepts the allegations in the complaint as true and draws all reasonable inferences in favor of the non-moving party. See Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002). Here, a motion to dismiss will only be granted if the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. See Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992). A court may look at the complaint and any documents attached to, or incorporated by reference in, the complaint. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir 1999).
A. Plaintiff's $1983 Claims
In order to be entitled to relief under § 1983, a plaintiff must allege: (i) a violation of a Constitutional right and (ii) must show that the alleged deprivation was committed by a person "acting under the color of state law." See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Plaintiff asserts three claims under § 1983: a violation of his equal protection rights under the Fourteenth Amendment; a violation of his right to privacy; and a violation of his due process rights. Although plaintiff has not alleged his equal protection claim under 42 U.S.C. § 1983, the Court will construe his claim as having been brought pursuant to that statute.
In order for the plaintiff to recover money damages for the violations he alleges, § 1983 is the statutory vehicle by which he must assert his claims. Furthermore, a direct claim under the Constitution is not available where § 1983 is available to redress an alleged constitutional violation. See Pauk v. Board of Trustees, 654 F.2d 856, 865 (2d Cir. 1981): see also Chapman v. Houston Welfare Rights Ore., 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) (finding a claim for the violation of one's equal protection rights cognizable under 42 U.S.C. § 1983). Lastly, in his Memorandum of Law in Opposition to Defendants' Motion to Dismiss, plaintiff discusses his equal protection claim under § 1983.
1. Equal Protection Claim
Plaintiff alleges that by singling out African American and Hispanic children for the research study, defendants violated his equal protection rights under the Fourteenth Amendment. He claims that White children were specifically excluded from the oral administration of fenfluramine and that by this exclusion, defendants insulated White children from fenfluramine's potential adverse effects.
The Fourteenth Amendment provides that no State shall "deny to any person, within its jurisdiction the equal protection of the laws." U.S. CONST, amend. XTV, § 1. In order to state an equal protection violation under the Fourteenth Amendment, a plaintiff must allege that: (1) the person, compared with others similarly situated, was selectively treated; and (2) such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious bad faith to injure a person. See e.g. Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996); Zahra v. Town of Southold, 48 F.3d 674, 683-84 (2d Cir. 1995); LaTrieste Restaurant Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994). Conclusory allegations of selective treatment are insufficient to state a claim. See Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988). Rather, a plaintiff "must allege purposeful and systematic discrimination by specifying instances in which [the plaintiff] [was] singled . . . out for unlawful oppression in contrast to others similarly situated." Id. at 573 (2d Cir. 1988) (internal quotations omitted): see also Deloreto v. Ment, 944 F. Supp. 1023, 1033 (D.Conn. 1996) (plaintiff must allege "specific conduct that violated [his/her] rights to equal protection, the time and place of the conduct, and the identity of the official who engaged in the conduct").
Defendants make several arguments in support of their motion to dismiss. Defendant Columbia University ("Columbia") correctly argues that under § 1983, employers are not responsible for the constitutional violations of their employees under a theory of respondeat superior. Columbia, therefore, is not liable vicariously for the conduct of its employees. A complaint alleging that Columbia committed a constitutional violation under § 1983 must make allegations of direct liability. It is well established that an employer is not liable for the acts of its employees under the tort theory of respondeat superior in suits brought under § 1983. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Although this principle was initially established in the context of municipal employers, it has been extended to private businesses. See Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir. 1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir. 1974). A private employer such as Columbia, therefore', will not be liable for the constitutional tort of an employee "unless the plaintiff proves that action pursuant to an official policy of some nature caused a constitutional tort." Roias v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990) (quoting Monell v. Dep't of Soc. Servs, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (internal quotation marks omitted). Thus, in order to sustain his claim on Columbia's motion to dismiss, plaintiff must allege that Columbia has a policy, pattern or practice that caused his alleged injury.
A review of the complaint shows that under this standard, plaintiff's equal protection claim against Columbia must be dismissed for failure to state a claim. Plaintiff makes several allegations that Columbia, along with the other defendants, conducted the study and the fenfluramine tests:
By singling out African-Americans and Hispanic male children for the aforesaid experiment, and specifically excluding White children therefrom, defendants unlawfully discriminated against said African-American children, including plaintiff, in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
Complaint at 9, ¶ 53. He further alleges that
[i]n or about January 1994, the individual defendant researchers, Columbia, Lowenstein, their employees, servants and/or agents, deliberately, intentionally and purposefully administered or caused to be administered, the drug Fenfluramine to plaintiff and other similarly situated African-American and Hispanic male children to the exclusion of white children.
Complaint at 8, ¶ 42. Plaintiff fails to make any allegation of either a policy, custom or practice that would support plaintiff's claim that Columbia violated his right to equal protection under the Fourteenth Amendment. The allegations he does make are unsupported by any alleged operative facts. "[A]llegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 187 (2d Cir. 1987). The Court, therefore, dismisses plaintiff's equal protection claim against Columbia University.
Defendant Leon Lowenstein Foundation ("Lowenstein" or "Foundation") challenges whether the complaint properly alleges that the Foundation acted "under the color of state law." In order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law. Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes `state action.'" United States v. Int'l Bhd. of Teamsters. Chauffeurs, Warehousemen Helpers of Am., 941 F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)). A private defendant may be held liable only as "a willing participant in joint activity with the State or its agents." Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). Claims under § 1983 can be brought against private entities by "showing that a person acting under color of state law . . . collaborated or conspired with a private person . . . to deprive the plaintiff of a constitutional right." Fries v. Barnes, 618 F.2d 988, 990 (2d Cir. 1980) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598).
"In cases under § 1983, "under color" of law has consistently been treated as the same thing as the "state action" required under the Fourteenth Amendment.'" Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quoting United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)).
Thus, in order to succeed on his § 1983 claim against the Foundation, the plaintiff must assert facts that demonstrate joint action or a conspiracy with a state actor. In the first count of his complaint, plaintiff alleges that
Defendant Columbia also argues that plaintiff has failed to allege that it has acted under the color of state law. The Court, however, has dismissed plaintiff's Equal Protection claim against Columbia on other grounds.
[b]y the conduct of the defendants herein, and the several cooperative efforts between the individual defendants and employees and agents of the City and the State of New York, said defendants and the City became state actors for the purpose of the Fourteenth Amendment of the United States Constitution.
Complaint at 9, ¶ 51. It is clear, however, that a conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity. Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Or. 1992). "[T]he complaint must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act." Id. Conclusory allegations or naked assertions are insufficient to plead joint or conspiratorial action between a state actor and a private defendant.Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Supporting operative facts must be alleged, the pleadings must specifically present facts tending to show agreement and concerted action. Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983). The allegations of joint conduct between the Foundation and the City are insufficient to find that the Foundation acted under the color of state law.
Plaintiff does, however, make several allegations involving Lowenstein and the New York State Psychiatric Institute ("NYSPI"), a New York State owned medical research facility. These allegations revolve around the same assertion, that
[i]n or about January 1994, the individual defendant researchers, Columbia, Lowenstein, their employees, servants and/or agents, deliberately, intentionally and purposefully administered or caused to be administered, the drug Fenfluramine to plaintiff and other similarly situated African-American and Hispanic male children, to the exclusion of white children.
NYSPI, the alleged employer of several defendant Scientists, is not a defendant' in this case.
Complaint at 8, ¶ 42. Specifically, plaintiff alleges that
Lowenstein, acting through the aforementioned officers and directors, approved a grant for the experiment and, in fact, did provide more than $1 million in funds to the researchers for the study over a period of approximately five years.
Complaint at 11, ¶ 66. It is well established, however, that a finding of state action may not be premised solely on the private entity's funding. See, e.g., San Francisco Arts Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 543-44, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). "The Government may subsidize private entities without assuming constitutional responsibility for their actions." Id. The issue before this Court, however, involves the flow of funds from a private entity to a state actor and raises the question whether private funding of government action is sufficient to convert the private actor into a state actor.
Plaintiff's only response, in its entirety, to defendant Lowenstein's Memorandum of Law in Support of Defendant Leon Lowenstein Foundation's Motion to Dismiss is that "Plaintiff incorporates his previous arguments herein in so far as same may be applicable to Leon Lowenstein Foundation, Inc. ("Lowenstein"). All the cases relied upon by this defendant are distinguishable from the case at bar." Plaintiffs Memorandum of Law in Opposition of Defendant's Motion to Dismiss at 16.
The Supreme Court recognized that the intermingling of state authority with private funding can create a relationship of "interdependence" between state and private parties, so that the two are "joint participant[s] in the challenged activity." Burton v. Wilmington Parking Auth., 365 U.S. 715, 724-25, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In establishing the "symbiotic relationship" test to determine whether a private actor acted "under the color of state law," the Supreme Court in Burton established a test that was fact-specific, holding that "[o]nly by sifting the facts and weighing the circumstances can the non-obvious involvement of the State in private conduct be attributed its true significance." 365 U.S. at 722, 81 S.Ct. 856.
The Supreme Court in Burton did not establish that the mere transfer of funds turned a private entity into a state actor. Rather, private conduct qualifies as state action when "[t]he State has so far insinuated itself into a position of interdependence with [the private party] that it must be recognized as a joint participant in the challenged activity, or when there is a sufficiently close nexus between the State and the challenged action that the private party's action may be fairly treated as that of the State itself." Hadges v. Yonkers Racing Corporation, 918 F.2d 1079, 1081 (2d Cir. 1990) (quoting Burton v. Wilmington Parking Auth., 365 U.S. at 724-25, 81 S.Ct. 856 and Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (holding that a governmentally protected monopoly would not be considered a state actor absent a showing of "a sufficiently close nexus between the State and the challenged action of the regulated entity to say that the action of the utility may be fairly treated as that of the state itself.") Id, at 349, 95 S.Ct. 449). Furthermore, the Third Circuit, in Crissman v. Dover Downs Entertainment, Inc., 289 F.3d 231 (3d Cir. 2001), addressed the issue of whether private funding to a public entity convert the private actor into a state actor.
The Supreme Court has had little opportunity to address the impact on the state action inquiry of the flow of funds in this direction, as most cases have involved the flow of money from the state to private entities. This is not surprising, for it would be a radical concept if the state's receipt of funds from private actors were to convert them into state actors. If this were the case, the state's receipt of tax revenue from a private entity's operations would qualify most corporations as federal actors, which is surely not a desirable result.Id. at 244. This Court finds that plaintiff's mere allegation that Lowenstein provided funding for the research study, without alleging further facts that could establish either a "symbiotic relationship" or a "close nexus" between Lowenstein and NYSPI, does not convert Lowenstein into a state actor. Plaintiff has not adequately pled that Lowenstein acted "under the color of state law." Plaintiff's Fourteenth Amendment claims against defendant Lowenstein under 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) are therefore dismissed.
Defendants Daniel Pine, Gail Wasserman, David Shaffer, J. John Mann, Jeremy Coplan, Bruce Parsons, Gerard Bruder and Thomas B. Cooper (collectively, the "Scientists") further contend that plaintiff fails to state an equal protection claim because he failed to adequately allege discriminatory intent. A claim alleging a violation of the equal protection clause requires specific allegations of discriminatory purpose and intent. "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). "To establish such intentional or purposeful discrimination, it is axiomatic that a plaintiff must allege that similarly situated persons have been treated differently." Gagliardo v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). Although "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause," a plaintiff need not show that a discriminatory reason was the sole reason for the disparate treatment, just that it was a substantial or motivating one.See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. at 265-66, 97 S.Ct. 555. "Discriminatory intent or purpose typically refers to those instances when a government actor seeks to disadvantage or negatively impact a group of persons." Hayden v. County of Nassau, 180 F.3d 42, 50 (2d Cir. 1999).
Defendants Columbia and Lowenstein also argue that plaintiff has failed to allege discriminatory intent. The Court, however, has dismissed plaintiffs Equal Protection claim against Columbia and against Lowenstein on other grounds.
Defendants argue that plaintiff fails to allege a discriminatory motivation for the research study. They claim that the research study had a clear scientific purpose and that the Scientists "selected plaintiff and the other subjects based on their status as the younger brothers of adjudicated juvenile delinquents, and had a scientific basis for believing that such a group was more at risk for developing anti-social behavior because they had a first degree relative who exhibited such behavior." Scientists' Memorandum of Law in Support of their Motion to Dismiss at 14. Defendants acknowledge that plaintiff bases his allegations of discriminatory intent on a draft protocol that explicitly states that the criterion for the study involves the inclusion of African-American and Hispanic children and the exclusion of white children. Defendants argue, however, that the complaint contains no allegation that these criteria were ever approved for use in the study and offer countervailing facts that indeed, these criteria were never adopted and that alternate protocols were approved for the study.
However, on a motion to dismiss, plaintiff's allegations must be taken as true and all inferences must be drawn in plaintiff's favor. In determining the sufficiency of the complaint, consideration is generally limited to the factual allegations in the complaint itself. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir 1994). Defendant's argument that the complaint contains no allegation that the criteria for the research study, i.e. the inclusion of African American and Hispanic children and the exclusion White children, was ever approved for use in the study is unavailing. Plaintiff, at this point, does not need to prove the truthfulness of his allegations. Rather, he must allege facts sufficient to prove racially discriminatory intent. A review of his allegations shows that he has done so sufficiently. The complaint states that the plaintiff is African American; that he was specifically selected to participate in the research study; that he was orally administered fenfluramine; that the subjects of the research would be exclusively African American and Hispanic children; and that similarly situated White children were specifically excluded from the study and therefore, the administration of fenfluramine. These allegations are sufficient to establish the defendant's discriminatory intent. Defendants' motion to dismiss plaintiff's Equal Protection claim on the basis of failure to allege discriminatory intent is denied.
See Third Amended Complaint ¶ 5.
See id. ¶ 35.
See id. ¶ 42.
See id. ¶ 30.
See id.
Defendants New York City, Peter Reinharz, Robert Stone and Gretched Rauch argue that plaintiff's equal protection claims must be dismissed because the plaintiff failed to allege that they ever classified any individual on the basis of race or treated similarly situated people differently on the basis of race. Plaintiff alleges that the City collected and disseminated general information on juvenile delinquents, including information about ethnicity, and released records of adjudicated juvenile delinquents to researchers knowing that they might use the information. Complaint at 6, ¶ 30-33. There is, however, no allegation that the City Defendants either limited or expanded the collection and dissemination of general ethnicity information on the basis of race. Similarly, with respect to the release of prosecutor's records, there is no allegation that the City Defendants limited the release to the records of African-American or Hispanic juveniles only, to the exclusion of white juvenile delinquents. There is no allegation that the City Defendants treated any similarly situated group differently. The Court, therefore, dismisses plaintiff's equal protection claim against defendants New York City, Peter Reinharz, Robert Stone and Gretchen Rauch.
2. Pattern or Practice Claim Against New York City
In the second count of his complaint, Plaintiff alleges that defendant City of New York had a practice, custom or policy of releasing information that allowed the defendant researchers to contact plaintiff and invite him to participate in the research study. Plaintiff claims that as a result of this practice, the City violated plaintiff's privacy rights. In their motion to dismiss, the City argues that plaintiff's allegations are insufficient to assert a § 1983 violation. The plaintiff, in his Memorandum of Law in Opposition to Defendants' Motion to Dismiss, does not address the City's argument.
In order to impose § 1983 liability against a municipal defendant, a plaintiff must set forth facts that show that the alleged constitutional violation resulted from an official policy, custom or practice. Monell v. Dep't of Soc. Servs, 436 U.S. at 690-91, 98 S.Ct. 2018. A plaintiff must show "a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation." City of Canton. Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The existence of a policy or custom can be inferred from "circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Ricciuti v. New York City Transit Authority, 941 F.2d at 123; see Sorlucco v. New York City Police Department, 971 F.2d 864, 870-71 (2d Cir. 1992); Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). "The mere assertion, however, that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993) (citing Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983),Black v. Stephens, 662 F.2d 181, 189 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982) and Lewis v. Hyland, 554 F.2d 93, 98 (3d Cir.), cert. denied, 434 U.S. 931, 98 S.Ct. 419, 54 L.Ed.2d 291 (1977)). Furthermore, "the simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or policy caused the plaintiff's injury."Dwares v. City of New York, 985 F.2d at 100. Similarly, there must be proof of such a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself. See Hafer v. Melo, 502 U.S. 21, 24-25, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991).
Plaintiff alleges that the City had "a practice, custom, or policy of releasing to persons who do not have a legal right to receive same, including researchers, data and information on juveniles who have gone through the criminal justice system or been convicted of a crime. Such data often include pedigree information about said juveniles and their families." Complaint at 10, ¶ 57. Plaintiff further claims that by their release of his brother's record "to the other defendants herein to enable them [to] identify plaintiff and, in fact, use him for their aforesaid Fenfluramine study, the City violated the privacy rights of the plaintiff." These allegations are insufficient to state a claim for municipal liability. "[A]llegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983," Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). Plaintiff fails to allege facts to support this claim. He merely asserts the existence of a custom or a policy without alleging operative facts that establish the existence of some custom, policy or practice that led to the alleged constitutional violation. Plaintiff has alleged that defendants Reinharz, Stone and Rauch "collect[ed], collat[ed] and disseminat[ed] information on the "Ethnicity" of the male offenders and the ages of the younger brothers of said offenders." Complaint ¶ 25. However, a single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy. Dwares v. City of New York, 985 F.2d at 100. Plaintiff's claim that the City had a practice, custom or policy of releasing information in violation of his constitutional right to privacy under § 1983 is, therefore, legally insufficient.
The City argues, furthermore, that even if plaintiff had sufficiently alleged the existence of a pattern or practice to establish municipal liability under § 1983, plaintiff's claims must be dismissed because he failed to establish the violation of a constitutional right. The City offers two arguments. First, the City argues that plaintiff does not have standing to assert his constitutional claims. Second, even if plaintiff had standing to sue, the City asserts that the disclosure of these documents does not amount to a violation of a constitutional right.
The Court recognizes that the threshold inquiry is whether there exists a constitutional right to privacy in the information disclosed by the City. The analysis ends if there is no right to privacy in the information disclosed. If plaintiff possesses a constitutional right to privacy, then it is clear that plaintiff has standing to bring suit. If, however, the constitutional right to privacy exists, but belongs only to the plaintiff's brother, then plaintiff would not have third-party standing to bring suit.
a. Right to Privacy
The Supreme Court first recognized a constitutional right to privacy inGriswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In finding that a Connecticut law forbidding the use of contraceptives unconstitutionally intrudes upon marital privacy, the Court illustrated various penumbras of rights, implicit in the first, third, fourth and fifth amendments, that guaranteed a person's right to privacy in their marriage. In Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976), the Court found that "[w]hile there is no "right of privacy" found in any specific guaranty of the Constitution, the Court has recognized that "zones of privacy" may be created by more specific constitutional guarantees and thereby impose limits upon governmental power." Id. (citing Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726, 35 L.Ed.2d 14, 176-78 (1973)). These zones of privacy protected matters that are "fundamental" or "implicit in the concept of ordered liberty." See Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, 292 (1937).
In Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977), the Supreme Court further delineated the right to privacy as including "two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions."Whalen v. Roe, 429 U.S. at 599, 97 S.Ct. 869 (upholding a New York statute authorizing the state to record the names and addresses of patients who received prescriptions for certain drugs). The Court reaffirmed the right to privacy in personal information in Nixon v. Administrator of General Services, 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867 (1977) in upholding an Act that provided for the screening of former President Nixon's presidential materials to segregate official documents for public preservation from personal documents for return to President Nixon.
The Second Circuit recognizes the right to privacy in one's personal information in a limited set of factual circumstances. See Eisenbud v. Suffolk County, 841 F.2d 42 (1988) (recognizing the right to privacy in the context of financial disclosures); see also Barry v. City of New York, 712 F.2d 1554 (1983) (finding that provision of city's financial disclosure law permitting public inspection of annual financial reports required of covered city employees did not violate confidentiality strand of right to privacy); Schachter v. Whalen, 581 F.2d 35 (1978) (holding that constitutional right to privacy not infringed because statute had a legitimate public-interest justification and substantial security procedures); Doe v. Marsh, 105 F.3d 106 (1997) (recognizing the existence of a clearly established constitutional, confidentiality-based right to privacy which precluded the state from disclosing that plaintiff's had HIV); Doe v. City of New York, 15 F.3d 264 (1994) (recognizing the existence of the right to privacy and confidentiality in one's personal medical information).
It is this right of informational privacy or right of confidentiality which is at issue here. Plaintiff alleges that the City violated his privacy rights when they released to the Scientists the Family Court records of his brother. Plaintiff claims that the release of these records allowed defendant Scientists to call him and invite him to participate in the study. Although plaintiff has not identified with particularity the exact information that was released, the City has averred that the Family Court records that were released contained, at the very least, general family information, including the names of family members, plaintiff's brother's address and telephone number. Plaintiff has not made any allegations to the contrary and a reasonable reading of the complaint leads the Court to conclude that the names of family members, telephone number and address encompasses the information allegedly released.
In light of the allegations of this complaint as well as the case law on the issue of right to confidentiality, this Court finds that plaintiff has no right to confidentiality in the records that were allegedly released. The Court can find no authority to suggest that the names of family members, address or telephone number rise to the level of private and intimate information to warrant constitutional protection. Cases that have recognized a right to privacy have done so in "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." Paul v. Davis, 424 U.S. at 713. A review of these cases shows that the Supreme Court sought to protect something more than the mere fact that one was a member of a certain family. Plaintiff's right to keep private that he was the brother of a juvenile offender is neither "fundamental" nor "implicit in the concept of ordered liberty." See Palko v. Connecticut, 302 U.S. at 325.
Plaintiff claims that the Supreme Court's decision in Paul v. Davis, 424 U.S. at 713, which supports the right to privacy in "family relationships," lends credence to his privacy claim. However, the language in the Davis decision is actually paraphrasing the Court's decision in Roe v. Wade, 410 U.S. 113, 152-53 which, in turn, finds its authority from Prince v. Commonwealth of Mass., 321 U.S. 158, 166 (1944). In Prince, the Supreme Court held that the right of a parent to rear a child and instruct him in a religion is constitutionally protected. The privacy recognized by the Supreme Court in "family relationships," therefore, is far from the privacy claims made by plaintiff.
The Second Circuit, in recognizing the constitutional right to confidentiality, has protected personal information limited to an individual's medical information, i.e. an individual's HIV status or status as a transsexual, and an individual's financial information. The constitutional right to confidentiality simply does not protect the general type of information alleged by plaintiff. In fact, courts have held that the right of confidentiality does not prohibit the disclosure of an individual's criminal history, including the individual's arrest records. See Paul v. Davis, 424 U.S. at 713 (finding no constitutional right of confidentiality affected by the publication of the fact that an individual was arrested of shoplifting); J.C. McRary v. Jetter, 665 F. Supp. 182 (E.D.N.Y. 1987) (finding that plaintiff did not have a constitutionally protected interest in the confidentiality of his youthful offender file); Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 117 (3d Cir. 1987) (holding that "arrest records are not entitled to privacy protection" because they are, by definition, public); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996) (holding that "there is no constitutional right to privacy in one's criminal record" because "arrest and conviction information are matters of public record").
Furthermore, whether the Constitution in fact protects against the type of disclosure alleged here "depends upon whether plaintiff had a reasonable expectation of privacy in the information." Soucie, 736 F. Supp. at 36 (quoting Nixon v. Administrator of GSA, 433 U.S. 425, 97 S.Ct. 2777). A review of the state statutes at issue further supports a finding that neither plaintiff nor his brother had any expectation of privacy in the information released. The New York Family Court Act § 166 states that
[t]he records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records. Any duly authorized agency, association, society or institution to which a child is committed may cause an inspection of the record of investigation to be had and may in the discretion of the court obtain a copy of the whole or part of such record.
Section 375.2 of the same Act states that "[i]f an action has resulted in a finding of delinquency, . . . the court may, in the interest of justice and upon motion of the respondent, order the sealing of appropriate records pursuant to subdivision one of section 375.1." The City argues that these statutes support their contention that the City's Family Court records pertaining to plaintiff's brother are not confidential.
In response, plaintiff alleges that "[t]here is nothing in the record to indicate that a court authorized the release of plaintiff's personal information in the case at bar." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 6. Plaintiff, however, does not allege that defendants violated either § 166 or § 375.2. He makes no allegation that the City failed to follow either statute and he does not argue that either statute is unconstitutional. Rather, plaintiff argues that "plaintiff does not predicate his § 1983 claim merely on a violation of [§ 166]." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 12. Plaintiff offers no other argument in support of his claim. In light of the above, the Court finds that the controlling state statutes did not provide either plaintiff or his brother with a reasonable expectation of privacy in the disclosed records. The Court finds that neither plaintiff nor his brother possess a constitutional right to confidentiality under the Constitution. Plaintiff's § 1983 privacy claim against the City is dismissed.
b. Standing
Even if the Court found that plaintiff's brother had a constitutional right to confidentiality in the records that were released, it is clear that plaintiff's claim must be dismissed for lack of standing. The requirement of standing comprises an element of subject matter jurisdiction that is not subject to waiver. In order to have standing, a party must allege (1) a personal injury in fact, (2) a violation of his or her own, not a third-party's, rights, (3) that the injury falls within the zone of interests protected by the constitutional guarantee involved, (4) that the injury is traceable to the challenged act, and (5) that the courts can grant redress for the injury. See Valley Forge Christian College v. Americans United for Separation of Church State, Inc., 454 U.S. 464, 472-74, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982): see also Dow Jones Company v. Simon, 842 F.2d 603, 606 (2d Cir. 1988).
The City contends that the plaintiff does not have standing to bring suit because the right to privacy which plaintiff is alleging is a right which belongs to his brother and not to him. In Soucie v. County of Monroe, 736 F. Supp. 33 (W.D.N.Y. 1990), the Court held that the parents of a convicted youthful offender lacked standing to assert a privacy claim based on allegedly improper dissemination by a county employee of confidential information from the son's pre-sentence report. The court found that
the plaintiff's constitutional right of privacy claim is predicated in large part upon the statutory safeguards which prohibit public dissemination of information pertaining to youthful offender adjudications. These safeguards are designed to solely protect juveniles, and not their parents, from the social stigma of a prior criminal conviction. Accordingly, [the parents] lack standing to rely upon those provisions and the claims on their behalf are dismissed from this action.Id. at 35.
Plaintiff argues, however, that "because the City defendants knowingly and intentionally disclosed the relationship between him and his adjudicated brother to non-City defendants for the purpose of enabling those non-City defendants to use him in their racist experiment, his privacy right and equal protection rights were violated." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 5-6. Plaintiff argues that in Soucie, the parents of an adjudicated juvenile "alleged that they suffered embarrassment and humiliation as a result of the defendant's disclosure of confidential personal and family information contained in their son's pre-sentence report. The Soucie court found that the parents had no standing to make [their] claim." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 5. Plaintiff contends that the facts of his case are distinguishable because he "is not claiming that he suffered any social stigma or embarrassment or humiliation as a result of the release of his brother's record." Id. Plaintiff's argument is misplaced. Plaintiff's claims are based solely upon the release of general family information about plaintiff, i.e., that plaintiff was the younger brother of an adjudicated juvenile delinquent, plaintiff's age, and the phone number and address of plaintiff's family. Likewise, the parents' claims in Soucie centered on the "disclosure of confidential personal and family information." The basis of both claims, if not identical, are sufficiently similar. Plaintiff's argument that the cases are distinguishable because of the type of injury suffered is irrelevant. The court in Soucie found "[w]ithout directly addressing the question of whether each of the plaintiff's has suffered the requisite injury in fact, it is clear that the claims of [the parents] do not fall within the zone of constitutionally protected privacy interests at issue here." Id. at 35. Plaintiff's claims here do not fall within the zone of constitutionally protected privacy interests. Even if the Court were to recognize that plaintiff's brother possessed a constitutional right to privacy in the records released, it is clear that the Court must dismiss plaintiff's claims against the City for lack of standing.
3. Due Process Claim
In his third count, plaintiff alleges that the "release by the City and its employees of information . . . which enabled the defendant researchers to identify plaintiff herein and subject him to their Fenfluramine experiment as aforesaid, without seeking plaintiff's prior informed consent for said release, and giving him an opportunity to be heard, is a denial to plaintiff of due process in violation of rights guaranteed him under the Constitution." Complaint at 11, ¶ 62.
The Court finds that a reasonable review of the complaint shows that plaintiff's third count for a violation of his due process under § 1983 is solely against the City of New York and the individual City defendants. Furthermore, even if plaintiff had intended to include the other defendants, it is clear that this claim would not apply. The Court has determined that plaintiff has failed to allege direct liability on the part of Columbia University. Furthermore, the Court has held that plaintiff has failed to allege that Lowenstein can be deemed a "state actor." Lastly, the release of plaintiff's brother's records can only be attributed to the City of New York and the individual City defendants and most certainly cannot be attributed to the Scientists.
The Due Process Clause of the Fourteenth Amendment provides that: "nor shall any State deprive any person of life, liberty, or property, without due process of law." The Supreme Court has established a two-part test to determine whether a plaintiff has stated a claim under the Due Process Clause of the Fourteenth Amendment. First, a plaintiff must allege that he or she possesses a constitutionally protected liberty or property interest that has been interfered with by the state. Second, the court examines what process the state provided and whether it was constitutionally adequate. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (holding that "[i]n procedural due process claims, the deprivation by state action of a constitutionally protected interest in life, liberty, or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Id. (internal quotations omitted)); see also Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). Furthermore, a § 1983 due process claim requires a plaintiff to allege that the defendants were personally involved in the unconstitutional conduct as there is no respondeat superior liability in § 1983 cases. Monell v. Dep't of Soc. Servs, 436 U.S. at 691, 98 S.Ct. 2018.
The City argues that plaintiff's due process claim must fail because plaintiff has not alleged the deprivation of a constitutionally protected liberty or property interest. The Court agrees. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. Furthermore, "[i]n determining which interests are afforded [constitutional] protection, a court must look to whether the interest involved would be protected under state law and must weigh the importance to the holder of that right." Ezekwo v. NYC Health and Hosps. Corp., 940 F.2d 775, 783 (2d Cir. 1991) (internal quotations omitted). Plaintiff's due process claim is based solely on the release by the City and the individual City defendants of his brother's Family Court records. Plaintiff does not allege the deprivation of any other liberty or property interest. In fact, this Court has already determined that plaintiff does not possess a constitutional right to privacy in his brother's records. Without any further allegations, plaintiff's due process claim must be dismissed.
The Supreme Court has found, however, that "a state statute may create a constitutionally protected liberty interest if it contains explicit mandatory language creating a right." Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 971-72, 74 L.Ed.2d 675 (1983); see also J.C. McRary v. letter, 665 F. Supp. 182, 185 (E.D.N.Y. 1987) (finding that "under the New York youthful offender statute, law enforcement agencies are able to obtain access to the files by court order," and that "nothing in the statute, such as the mandatory language and substantive predicates described in Hewitt, suggests that the state has created a protected liberty or property interest.") (internal citations omitted). The violation of such a statute may provide a plaintiff with a cause of action for the violation of his due process. Plaintiff, however, points to no statute that created for him the requisite liberty interest. He also makes no allegation that any state statute was violated. Even if plaintiff had alleged that the City defendants violated either § 375.2 or § 166 of the New York Family Court Act and deprived him of his due process rights, it is well established that not all violations of state law implicate constitutional rights and create a cause of action under § 1983. See Paul v. Davis, 424 U.S. at 700. 96 S.Ct. 1155. A review of § 375.2 and § 166 of the New York Family Court Act shows that plaintiff could have no reasonable expectation of privacy in his brother's records. Plaintiff, therefore, has not sufficiently alleged the deprivation of either a liberty or property interest to support his due process claim. His third count for a violation of § 1983 must therefore be dismissed.
B. Plaintiff's § 1985 Claims
Plaintiff's fourth count alleges a violation of 42 U.S.C. § 1985. Section 1985(3) addresses conspiracies to violate civil rights and is derived from the Civil Rights Act of 1871. In order to state a claim for relief under § 1985(3), a plaintiff must allege a conspiracy for the purpose of depriving him of equal protection or equal privileges and immunities, an act in furtherance of the conspiracy, and an injury or deprivation of a right or privilege of a citizen. Griffin v. Breckenridge, 403 U.S. 88, 102-3, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); see also Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Katz v. Klehammer, 902 F.2d 204, 207 (2d Cir. 1990). In addition, there must be a showing of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action." Griffin, 403 U.S. at 102, 91 S.Ct. 1790. Furthermore, a claim under § 1985(3) for conspiracy to deny equal protection in violation of the Fourteenth Amendment is not actionable in the absence of a state action. See United Broth, of Carpenters and Joiners, Local 610 v. Scott, 463 U.S. 825, 831-32, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983).
Although plaintiff does not make clear whether he is alleging § 1985(1), § 1985(2) or § 1985(3), § 1985(3) is the only subsection that could possibly apply to this case. Subsection (1) involves conspiracies to prevent or impede an officer of the United States from discharging his duties while subsection (2) involves conspiracies to intimidate or influence parties, witnesses or jurors to legal proceedings or otherwise obstruct justice. See 42 U.S.C. § 1985(1) and (2). Furthermore, plaintiff defends § 1985(3) in his Memorandum of Law in Opposition of Defendants' Motion to Dismiss. The Court, therefore, will treat plaintiffs fourth claim as alleging a violation of 42 U.S.C. § 1985(3).
A complaint alleging a conspiracy to violate civil rights is held to heightened pleading standards. See Julian v. New York City Transit Authority, 857 F. Supp. 242, 252 (E.D.N.Y. 1994), aff'd without op., 52 F.3d 312 (2d Cir. 1995). A claim of conspiracy must set forth facts showing some intentional and purposeful deprivation of constitutional rights. Powell v. Workmen's Compensation Board of the State of New York, 327 F.2d 131, 137. Plaintiff is bound to do more than merely state vague and conclusory allegations and must allege with at least some particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy. Id.; see also Jacobson v. Organized Crime and Racketeering Section of the U.S. Dep't. of Justice, 544 F.2d 637; X-Men Security, Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 1999). A plaintiff must allege facts of a "mutual understanding among the conspirators to take actions directed toward an unconstitutional end." Gibbs-Alfano v. Ossining Boat Canoe Club, Inc., 47 F. Supp.2d 506, 513 (S.D.N.Y. 1999) (quoting Julian, 857 F. Supp at 252). Furthermore, the complaint must allege "an agreement between two or more individuals, where one individual acts in furtherance of the objective conspiracy, and each member has knowledge of the nature and scope of the agreement." Dove v. Fordham University, 56 F. Supp.2d 330, 337 (S.D.N.Y. 1999) (quoting Burrell v City University of New York, 995 F. Supp. 398, 414 (S.D.N.Y. 1998). A complaint should further set forth "the roles of each of the defendants who allegedly participated in [the] conspiracy." Laverpool v. New York City Transit Auth., 760 F. Supp. 1046, 1056 (E.D.N.Y. 1991).
Under this standard, the complaint fails to properly allege a conspiracy. Plaintiff alleges that "[a]ll the defendants herein conspired with one another to bring about the selective and discriminatory oral administration of Fenfluramine to African-American and Hispanic male children, including plaintiff, solely on the basis that they are person of African American and Hispanic ancestry." Complaint at 12, ¶ 68. Plaintiff further asserts that the "action of the defendants was to directly or indirectly deprive plaintiff of the equal protection of the laws, or equal privileges and immunities under the law." Complaint at 12, ¶ 69. Lastly, plaintiff maintains that "[i]n furtherance of the . . . conspiracy, one or more of the defendants in fact orally administered . . . the drug Fenfluramine." Complaint at 12, ¶ 70. As a result, "plaintiff has been injured and has suffered loss and damage." Complaint at 12, ¶ 71. Plaintiff makes no other allegations in support of his claim. He makes no allegations of a specific agreement, a meeting of the minds, nor a mutual understanding to perform an unconstitutional act. He makes no factual allegations as to which defendants conspired with whom and about what they supposedly conspired. The Court finds, therefore, that even with the most liberal reading of plaintiff's complaint, his references to a conspiracy are vague, general and conclusory. His claim that defendants conspired in violation of § 1985(3) is, therefore, dismissed.
C. Plaintiff's State Claims
As defendant Scientists motion to dismiss plaintiff's § 1983 equal protection claim was denied, this Court exercises supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over plaintiff's remaining state law claims. These include a medical malpractice claim as well as a claim of negligence and breach of statutory care.
1. Medical Malpractice
Plaintiff alleges that defendants Pine, Shaffer, Mann, Copland and Parsons "administered or caused to be administered to plaintiff, the drug, Fenfluramine but concealed from and/or failed to reveal to plaintiff and his mother, the potential risks of injury to the mind and body which said drug could cause plaintiff." Complaint at 13, ¶ 76. This conduct "fell short of the accepted standard of medical practice in the State of New York and, indeed, demonstrated a reckless indifference for the welfare and medical needs of plaintiff." Complaint at 13, ¶ 77.
Defendant Scientists first argue that plaintiff has impermissibly pled his common law claim for medical malpractice along with his statutory claim for medical malpractice for lack of informed consent. Scientists argue that the two claims must be pled separately. Next, Scientists maintain that plaintiff has failed to allege which doctors formally ordered or performed the administration of fenfluramine. The scientists also claim that as a matter of law, it is insufficient to allege merely a doctor-patient relationship to support a claim for malpractice, and that here "the only evidence [plaintiff] offer[s] is the fact that [the doctors] were listed as co-authors of an article about the [Fenfluramine] challenge." Reply Memorandum of Law in Support of Defendant Scientists' Motion to Dismiss the Complaint at 11. See Nisenholz v. Mount Sinai Hospital, 483 N.Y.S.2d 568 (Sup.Ct. N.Y. Co. 1984), aff'd 496 N.Y.S.2d 886 (1st Dept 1985) (finding that a doctor who "neither formally order[ed] nor actually perform[ed] the procedure" on a patient could not be held liable for an alleged lack of informed consent).
Defendants' arguments are misplaced. In reviewing a motion to dismiss, this Court accepts the allegations in the complaint as true and draws all reasonable inferences in favor of the non-moving party. See Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002). Further evidence, at this stage of the litigation, is unnecessary. Rather, the Court's duty is to examine whether sufficient allegations have been made to support plaintiff's claims. A reasonable reading of the complaint shows that plaintiff alleges that all of the doctors are responsible for administering or causing the administration of fenfluramine. Whether plaintiff can prove this allegation at trial is irrelevant at this stage.
Furthermore, plaintiff, in his Memorandum of Law in Opposition of Defendants' Motion to Dismiss argues that his "medical malpractice claim is bottomed on lack of informed consent by the medical doctors who saw plaintiff in connection with the study." Id. at 15. New York has codified medical malpractice claims based on the doctrine of lack of informed consent. See Public Health Law § 2805-d. To establish a cause of action to recover damages for medical malpractice based on lack of informed consent, plaintiff must prove (1) that the medical provider failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives that a reasonable medical provider would have disclosed in the same circumstances; (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed; and (3) that the lack of informed consent is a proximate cause of the injury. See Spano v. Bertocci, 299 A.D.2d 335, 749 N.Y.S.2d 275 (2 Dept. 2002).
Under this standard, plaintiff's allegations of medical malpractice sufficiently state a claim. Plaintiff alleges the following:
[s]aid defendants administered or caused to be administered to plaintiff, the drug, Fenfluramine but concealed from and/or failed to reveal to plaintiff and his mother, the potential risks of injury to the mind and body which said drug could cause plaintiff.
Complaint at 13, ¶ 76;
[t]he aforesaid conduct of the defendants fell short of the accepted standard of medical practice in the State of New York and, indeed, demonstrated a reckless indifference for the welfare and medical needs of plaintiff.
Complaint at 13, ¶ 77; "By reason of the foregoing and as a proximate cause thereof, plaintiff has suffered loss and damage." Complaint at 13, ¶ 78. These allegations satisfy the first and third prongs to state a claim of medical malpractice. A reasonable reading of the complaint shows that plaintiff also satisfies the second prong that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed. Although not specifically alleged or artfully pleaded, plaintiff has made sufficient allegations to infer that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed. Specifically, plaintiff alleges that "[d]efendants knew that their experimentation with Fenfluramine . . . had a "greater than minimal risk" and could provide no benefit, therapeutic or otherwise, nor cure a pre-existing medical condition presented by the plaintiff." Complaint at 8, ¶ 45. Plaintiff further alleges that
[t]he defendants knew, or should have known, at the time they caused the plaintiff to ingest Fenfluramine that the drug was not approved by the Food and Drug Administration (FDA) for the use of children under the age of twelve (12) years old and, therefore, defendants could not explain to plaintiff or plaintiff's mother the reasonably foreseeable risks or discomforts or adverse effects that the drug could potentially cause to the plaintiff'
Complaint at 8, ¶ 47. Defendants' motion to dismiss plaintiff's medical malpractice claim is denied.
2. Negligence and Breach of Statutory Care
Plaintiff further alleges that defendant Scientists Pine, Wasserman, Mann, Coplan, Parsons, Bruder and Cooper "were negligent and breached their duty to obtain the voluntary informed consent of plaintiff prior to their research with plaintiff, and further demonstrated a reckless disregard for the welfare of the plaintiff by failing to provide him and his mother with all the information which is a necessary precondition for obtaining such consent." Complaint at 14, ¶ 84. Plaintiff, furthermore, cites Article 24-A of the New York State Public Health Law as the basis of his claims. It appears that plaintiff is alleging that Article 24-A imposes upon the defendant Scientists a duty to obtain voluntary informed consent from their test subjects before undergoing their study. Plaintiff is alleging that the Scientists' negligent failure to obtain such consent was a breach of this duty.
Although plaintiff has not alleged with specificity which defendants Count VI is asserted against, it appears that plaintiff's claims for negligence and breach of statutory duty of care are asserted solely against the individual scientist defendants who are alleged to have been subject to a duty under New York State's Public Health Law, Article 24-A. As such, the Court will treat Count VI as asserting claims against these scientists.
Defendants' only argument is that plaintiff has not pled any specific facts regarding what each of these defendants allegedly said to him and when each message was conveyed. Defendant's contend that the complaint lacks adequate particularity. Plaintiff's response, in its entirety, to defendants' arguments is that "[d]efendants have failed woefully to carry their burden that plaintiff failed to properly plead negligence based upon defendant scientist's breach of statutory duty." Plaintiff's Memorandum of Law in Opposition of Defendants' Motion to Dismiss at 16.
Under New York law, the doctrine of informed consent has been codified in § 2805-d of the New York Public Health Law. In order to establish a cause of action to recover damages for medical malpractice based on lack of informed consent, plaintiff must prove (1) that medical provider failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical provider would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury. See Spano v. Bertocci, 749 N.Y.S.2d 275.
Under this standard, plaintiff's allegations of negligence based on the Scientists' breach of their statutory duty to obtain informed consent are sufficient to support a claim. Similar to plaintiff's medical malpractice claim, plaintiff allegations, though inartfully pled, allow for the inference that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed. Defendants' motion to dismiss plaintiff's claims of negligence and breach of a statutory duty is therefore denied.
III. Conclusion
Defendants Columbia University, the Leon Lowenstein Foundation, New York City, Peter Reinharz, Robert Stone and Gretchen Ranch's motions to dismiss plaintiff's equal protection claim is granted. Defendant New York City's motion to dismiss plaintiff's § 1983 claim is granted. Defendants New York City, Peter Reinharz, Robert Stone and Gretchen Rauch's motion to dismiss plaintiff's due process claim is granted. Defendants' motion to dismiss plaintiff's § 1985 claim is granted.
Defendant Pine, Wasserman, Shaffer, Mann, Coplan, Parsons, Bruder and Cooper's motion to dismiss plaintiff's equal protection claim is denied. Defendant Pine, Shaffer, Mann, Coplan and Parsons' motion to dismiss plaintiff's medical malpractice claim is denied. Defendant Pine, Wasserman, Mann, Coplan, Parsons, Bruder and Cooper's motion to dismiss plaintiff's claims of negligence and breach of a statutory duty is denied.