Diane Phillips, Respondent, v. Wyeth Laboratories, Division of American Home Products Corp., Appellant, et al., Defendant

Diane Phillips, Respondent, v Wyeth Laboratories, Division of American Home Products Corp., Appellant, et al., Defendant. [675 NYS2d 76] [MAJORITY] —Order, Supreme Court, New York County (Stanley Sklar, J.), entered on or about April 2, 1997, which denied defendant-appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. In this action to recover for personal injuries allegedly sustained by plaintiff as a result of having taken an oral contraceptive, Nordette 28, manufactured by defendant, Wyeth Laboratories, a triable issue of fact is raised by the affidavit of plaintiffs expert stating that the Nordette 28 package insert did not warn sufficiently against the drug’s use by women who smoke. The insert, although advising against smoking while using the drug, does not state that use of the drug by smokers is categorically contraindicated. Plaintiffs expert, however, states in his affidavit that the health risks posed smokers by the drug are so great as to warrant such a categorical advisement. After carefully analyzing the subject warning’s language, including its “meaning and informational content * * * [as well as] its form and manner of expression”, we cannot conclude that Wyeth’s warning was adequate as a matter of law (Martin v Hacker, 83 NY2d 1, 10). We have considered appellant’s remaining contentions and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Nardelli, Wallach and Saxe, JJ.