Claimant Lavar A. Gibson moves for an order striking defendant’s answer
and for summary judgment in his favor. In his claim, Mr. Gibson alleges as
follows: On the evening of July 11, 2008, he reported to the infirmary at
Woodbourne Correctional Facility to receive his daily prescribed dosage of the
medication Paxil. When the nurse on duty dispensed his medication, he was given
three additional pills along with the Paxil, which the nurse identified to him
as Zoloft, and which she said had been prescribed for claimant by the facility
psychiatrist. Gibson ingested the medication, and about an hour later, he was
called back to the infirmary where the nurse advised him that the Zoloft had
been given to him in error, and had actually been intended for another newly
arrived inmate with the same last name as claimant. The next morning, claimant
began suffering nausea, vomiting, headaches and stomach aches which lasted for
48 hours. Contrary to claimant’s allegations, defendant denies that the
nurse had any discussion with claimant at the time she provided the Zoloft to
him; according to defendant, claimant made no inquiry before swallowing the
Zoloft pills. In any event, defendant does not dispute that “claimant was
given, and ingested, 150 mg of Zoloft that was not prescribed to him . .
Defendant does, however, dispute
claimant’s symptoms and their causation.
In order to prevail on this motion, Gibson must prove that any such symptoms
were caused by the Zoloft -- this is the kind of issue that ordinarily requires
expert testimony. In sum, issues of fact remain which preclude the granting of
summary judgment. See CPLR 3212(b). Accordingly, having reviewed the
, IT IS ORDERED that motion no.
M-76147 be denied.