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From Products Liability Law Daily, May 2, 2013

Smokers’ Claims Time-Barred; Existence of Independent Medical Monitoring Cause of Action Certified to New York High Court

By Pamela C. Maloney, J.D.

Strict products liability, negligence, and breach of implied warranty claims brought be a proposed class of smokers against a cigarette maker were barred by the applicable New York statutes of limitations, the U.S. Court of Appeals for the Second Circuit determined (Caronia v. Philip Morris USA, Inc., May 1, 2013, Kearse, A.). However, the court certified to the New York Court of Appeals the question of whether an independent claim for medical monitoring existed under New York state law, the answer to which could affect the court’s decision regarding the timeliness of the smokers’ claims.

Background. A group of smokers brought strict products liability, negligence and breach of implied warranty claims against Philip Morris alleging that its Marlboro cigarettes contain "unnecessarily dangerous levels of carcinogens when smoked by humans." The smokers also alleged that the cigarettes were not safe for the ordinary purposes intended by the manufacturer and used by the smokers. Finally, the smokers brought an independent equitable claim seeking to require Philip Morris to fund a program of medical monitoring for longtime smokers of Marlboro cigarettes who have not been diagnosed with, but are at risk for, lung cancer. The smokers were all 50 years of age or older and were currently smoking Marlboro cigarettes or had ceased smoking them within one year prior to the filing of the lawsuit. In addition, they all smoked Marlboro cigarettes for at least 20 pack-years (the number of packs of cigarettes smoked per day multiplied by the number of years).

Statute of limitations. The smokers argued that that their negligence and strict liability claims were timely either because: (1) the limitations period began anew with each harmful exposure to Marlboro cigarettes; or (2) they could not assert those claims until the medical surveillance technique known as Low Dose CT Scanning of the chest (LDCT) had become available. The smokers also argued that their breach-of-warranty claims could not properly be dismissed as a matter of law because there were genuine issues to be tried as to whether Marlboro cigarettes could have been made safer for their intended purpose. Noting that in order to recover on any of its claims, the smokers had to allege and prove an injury, the court found the smokers’ allegations made it clear that they were claiming injury in the form of their increased risk of developing lung cancer. Having determined that the smokers did allege an injury, the court went on to find that regardless of whether the three-year statute of limitations or a more expansive six-year limitations period applied, the smokers claims accrued in the mid-1990s—on the dates the smokers’ depositions established that they discovered that smoking Marlboro cigarettes increased their risk of lung cancer—and did not accrue repeatedly with each new inhalation. Thus, the claims were barred under either the three-year or six-year statute of limitations.

The court also rejected the smokers’ argument that their cause of action did not accrue until 2006 when LDCT surveillance monitoring became available. As discussed above, it was clear that by the time the smokers’ injuries arose in or before the mid-1990s, they could have sought relief in the New York courts. The smokers did not cite to any case holding that a cause of action for injury that is cognizable in the New York courts did not accrue until a remedy preferred by the injured person becomes available.

Implied warranty claims. In determining that the smoker’s claims for breach of implied warranty were time-barred, the court distinguished between their merchantability-related strict liability claim and the liability that is more typically associated with claims for defective products. The smokers had argued that there was a genuine issue of fact as to whether the cigarettes could have been made safer for their intended purposes. Unlike products liability’s risk/utility analysis, a warranty of merchantability does not require that the goods be perfect. Thus, the warranty is not breached if the cigarettes were minimally safe when used in the customer, usual, and reasonably foreseeable manner. Thus, the question of whether the cigarettes could be made safer was not material to the breach of implied warranty and there was no need to submit the issue to the jury.

Medical monitoring as independent claim. With regard to the smokers’ claim for medical monitoring costs, the Second Circuit stated that the question of whether a plaintiff could maintain an independent cause of action for medical monitoring under New York law has not been addressed by the New York Court of Appeals. However, New York intermediate appellate courts and trial-level courts have ruled that plaintiffs who have been tortiously exposed to toxic substances and who could show that they had a rational basis for their fear of developing cancer may be allowed to recover the cost of medical monitoring as an element of reasonably anticipated consequential damages. In addition, most of the federal district courts sitting in New York State had ruled that medical monitoring is available as a remedy for tortious exposure to carcinogenic substances even if the plaintiffs had not exhibited symptoms of cancer, concluding that the New York Court of Appeals would recognize such a claim. However, courts in other states have reached varying results on the question. Most of the courts that have concluded that a plaintiff who has not suffered physical injury from tortious exposure to hazardous substances could maintain a cause of action for medical monitoring have elaborated on the elements necessary to prevail on such a claim. The lists of elements set forth by these courts are similar, but not identical, and all courts recognizing this cause of action have noted that the claim could not be established without reliable expert testimony.

Certified question. It is typical in cases such as this one in which state law controls and the governing principles were uncertain or ambiguous, for federal courts to attempt to predict how the highest court of the state would resolve the issue. However, in light of: (a) the lack of controlling precedent of the New York Court of Appeals; (b) the absence of clear guidance by New York's intermediate appellate courts; (c) the importance of the questions presented as to the availability of medical monitoring as an independent cause of action; and (d) the value judgments and important policy considerations that must be balanced in resolving these questions, the Second Circuit concluded that the New York Court of Appeals was better suited to determine whether New York recognizes such a cause of action. Accordingly, the federal appellate court certified to the New York high court the following questions of New York law:

  1. Under New York law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, pursue an independent equitable cause of action for medical monitoring for such a disease?
  2. If New York recognizes such an independent cause of action for medical monitoring: (a) What are the elements of that cause of action? and (b) What is the applicable statute of limitations, and when does that cause of action accrue?

The case number is: 11-031six-cv.

Attorneys: Steven Phillips, Esq. (Phillips & Paolicelli, LLP) for Caronia; John Beisner (Skadden, Arps, Slate, Meagher & Flom LLP) and Thomas Quigley (Winston & Strawn LLP) for Philip Morris USA, Inc.

Companies: Philip Morris USA, Anc.

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