July 25, 2014

Second Circuit Certifies Smoking-Related Medical Monitoring Issue for Ruling by New York High Court

In an effort to clarify the availability and scope of medical monitoring claims under New York law, the Second Circuit last week certified to the New York State Court of Appeals questions relating to whether smokers who have not been diagnosed with a smoking-related disease may bring a stand-alone claim against a tobacco company for medical monitoring. The Court of Appeals’ decision will likely have broad implications for toxic tort cases involving allegations of potential health effects.

The action was brought by long-term smokers who had not contracted lung cancer. They alleged that Defendant Philip Morris USA, Inc. knew that it was feasible to develop a less carcinogenic cigarette, but deliberately designed its product to deliver an excessive amount of carcinogens when smoked. As relief for their claims of negligence, strict liability and breach of warranty, the plaintiffs sought funding for a medical monitoring program to address their increased risk of lung cancer.

The Second Circuit affirmed Defendant’s motion to dismiss the smokers’ claims of negligence, strict liability and breach-of-warranty claims. Rather than dismiss the request for medical monitoring outright, however, the Circuit judges asked the Court of Appeals to consider whether, under New York law, a current or former heavy smoker not diagnosed with smoking-related disease may pursue an independent equitable cause of action for medical monitoring for such a disease. If the court determines that an independent cause of action for medical monitoring exists, the Second Circuit asked the court to then consider what the elements of that cause of action would be, what statute of limitations would apply, and when the cause of action would begin to accrue.

Although several New York courts have allowed medical monitoring damages as a remedy in connection with other claims, the Second Circuit noted that no New York court has directly addressed the questions it certified, and invited the Court of Appeals to expand on or alter those questions as it sees fit. Regardless of the result reached by the Court of Appeals, its decision in this matter will likely have far-reaching effects on the availability and scope of medical monitoring claims and remedies under New York law.

© 2014 Beveridge & Diamond PC

About the Author

John S. Guttman, Principal Attorney, Beveridge & Diamond
Principal Attorney

Mr. Guttmann represents companies in complex, high-stakes toxic tort, product liability and environmental litigation. He also provides strategic legal and business counsel on regulatory compliance and transactional due diligence. He has served in leading roles in litigation matters with potential damages/awards in the billions of dollars, and has secured dismissal or reduction of claims in numerous matters that have saved clients millions of dollars. By blending regulatory, transactional, and litigation expertise (including representation of clients as plaintiffs) into an integrated whole...


About the Author

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

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Kari L. Twaite, Associate, Beveridge & Diamond

Kari Twaite is an Associate in the Washington, D.C. office of Beveridge & Diamond, P.C., with a general litigation, regulatory, and environmental practice.  Kari received her law degree from Vermont Law School (J.D. 2011, magna cum laude), where she was a Notes Editor for the Vermont Law Review and a Research Associate with the Vermont Institute for Energy and the Environment.  During law school, Kari interned with the U.S. Department of Energy's Office of General Counsel.

Kari also earned a Master of Environmental Management in 2011 from the Yale University School...


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