Man unsure of the safety of his medicine

Breaking news and expert analysis on legal and compliance issues

[Back To Home][Back To Archives]

From Products Liability Law Daily, December 18, 2013

No independent equitable cause of action for medical monitoring in New York

By John W. Scanlan, J.D.

An independent equitable cause of action for medical monitoring is not recognized by the state of New York, the New York Court of Appeals held in response to a question certified to it by the U.S. Court of Appeals for the Second Circuit. Allowing an independent claim for medical monitoring without evidence of physical injury or damage to property would flood the courts with claims from potential plaintiffs seeking monitoring costs and inequitably divert resources away from those who had actually been injured, the court reasoned (Caronia v. Philip Morris USA, Inc., December 17, 2013, Pigott, E.).

Background. Marcia Caronia, Linda McAuley, and Arlene Feldman are current or former smokers of Marlboro cigarettes for 20 pack-years or more, but none of them has been diagnosed with lung cancer or are under investigation by a physician for suspected lung cancer. They filed a class action lawsuit against Philip Morris USA, the manufacturer of Marlboro cigarettes, alleging breaches of negligence, strict liability, and breach of the implied warranty of merchantability. They requested that the company pay for a program that would provide them with Low Dose CT Scanning of the chest as a form of medical monitoring to assist in early detection of lung cancer.

The federal district court granted summary judgment to Philip Morris on the claims for negligence and strict liability, but ordered further briefing on the warranty claim and on whether the New York Court of Appeals would recognize a claim for medical monitoring. The plaintiffs then filed an amended complaint containing a new equitable cause of action for medical monitoring. The district court dismissed both claims, although it stated that it believed that the state high court would recognize a claim for medical monitoring. On appeal, the U.S. Court of Appeals for the Second Circuit upheld the dismissal of the claims, but certified to the New York Court of Appeals the questions of whether the state of New York would recognize an independent equitable cause of action for medical monitoring under these circumstances, and if so, what the elements and applicable statute of limitations would be for this tort.

Medical monitoring. The New York Court of Appeals declined to recognize an independent equitable cause of action for medical monitoring without the plaintiff’s establishing physical injury. The requirement that a plaintiff sustain a physical harm in order to recover in tort is a fundamental principle of New York’s tort system. Because the three plaintiffs in this case have not alleged any physical injury or harm to property, the court would have to recognize a new tort in order to provide them relief. Previous case law in New York sustaining claims for medical monitoring had allowed damages flowing from personal injuries to be recovered as consequential damages that accrued from the time of exposure. The high court observed that federal courts in New York have found that the state would recognize an independent equitable cause of action for medical monitoring based solely upon a plaintiff’s injury being a financial burden associated with medical monitoring, but the court stated that the appellate divisions had consistently found that medical monitoring was an element of damages that could be recovered only after the plaintiff first had proven a physical injury. The court noted that high courts in other states had split on the issue of whether there could be an action for medical monitoring without a physical injury or damage to property.

While the New York Court of Appeals had the authority to recognize a new tort cause of action, it declined to do so for policy reasons. The court was concerned that, without a physical injury requirement, “tens of millions” of potential plaintiffs would flood the court system seeking relief, drawing the resources of potential tortfeasors away from those who had actually been injured and giving them to people who may never actually contract a disease. Furthermore, the courts lacked the expertise to implement and administer a medical monitoring program, and the legislature was better placed than the court to consider the impacts of creating this cause of action. The court concluded by noting that its decision would not prevent plaintiffs who have sustained a physical injury from obtaining a medical monitoring remedy based on an entitlement to damages from an existing tort cause of action.

Dissent. In a dissent, Chief Justice Lippman stated that overall fairness “demands” the recognition of an independent equitable cause of action for medical monitoring for smokers who can prove that their enhanced risk of cancer was caused by the wrongful conduct of tobacco companies. He asserted that medical monitoring would promote the public health interest in fostering access to testing for individuals exposed to toxic chemicals, in light of the value of early diagnosis and treatment at early stages; would benefit tobacco companies, since the cost of monitoring and early treatment would be cheaper than late-state treatment and wrongful-death lawsuits; would deter misconduct; and would justly shift the costs of medical monitoring to tortfeasors from individuals exposed to toxins but who were unable to prove that a disease was likely to develop. He dismissed the majority’s concern regarding a flood of litigation as unfounded, stating that this concern could be addressed by defining the injury as one requiring definite and identifiable proof involving accepted scientific standards, continuing to require plaintiffs to prove a defendant’s tortious conduct, and allowing defenses such as contributory negligence to be available in the context of a smoking case. Plaintiffs would also be required to prove the existence of an efficacious method of screening for early detection which conformed to the medical standard of care and was also reasonably necessary given the enhanced risk of cancer, he noted. He denied that the courts lacked the expertise to administer a medical monitoring program, noting that some courts had already outlined guidelines for doing so.

The case number is 227.

Attorneys: Victoria E. Phillips (Phillips & Paolicelli LLP) for Marcia L. Caronia. Kenneth J. Parsigian (Latham & Watkins LLP) for Philip Morris USA, Inc.

Companies: Philip Morris USA, Inc.

MainStory: TopStory DamagesNews TobaccoProductsNews NewYorkNews

Products Liability Law Daily

Introducing Wolters Kluwer Products Liability Law Daily — a daily reporting service created by attorneys, for attorneys — providing same-day coverage of breaking news, court decisions, legislation, and regulatory activity.

A complete daily report of the news that affects your world

  • View full summaries of federal and state court decisions.
  • Access full text of legislative and regulatory developments.
  • Customize your daily email by topic and/or jurisdiction.
  • Search archives for stories of interest.

Not just news — the right news

  • Get expert analysis written by subject matter specialists—created by attorneys for attorneys.
  • Track law firms and organizations in the headlines with our new “Who’s in the News” feature.
  • Promote your firm with our new reprint policy.

24/7 access for a 24/7 world

  • Forward information with special copyright permissions, encouraging collaboration between counsel and colleagues.
  • Save time with mobile apps for your BlackBerry, iPhone, iPad, Android, or Kindle.
  • Access all links from any mobile device without being prompted for user name and password.