New York High Court Rejects Medical Monitoring Claims Absent Injury
Striking a blow to toxic tort plaintiffs seeking to recover personal injury damages in the absence of physical injury, New York’s highest court ruled on December 17 that medical monitoring is not a separate cause of action under New York law. Caronia v. Philip Morris USA, Inc., 2013 N.Y. LEXIS 3476, 2013 N.Y. Slip. Op. 8372 (N.Y. Dec. 17, 2013) ( “Slip Op.”).
In Caronia, three plaintiffs filed suit on behalf of all New York state residents age 50 and older who had smoked Marlboro cigarettes for 20 “pack-years” (the equivalent of a pack a day for 20 years) or more, but who were not presently suffering from lung cancer. See Caronia v. Philip Morris USA, Inc., 2010 U.S. Dist. LEXIS 12168, at *1-2 (E.D.N.Y. Feb. 11, 2010). The claims originally included negligence, strict liability, and breach of the implied warranty of merchantability, but after the district court granted partial summary judgment to defendants on statute of limitations grounds, plaintiffs sought to add a separate equitable cause of action for medical monitoring. Slip Op. at 2-3.
The district court dismissed the remaining claims due to pleading deficiencies. On appeal, the United States Court of Appeals for the Second Circuit certified two questions to the New York Court of Appeals to determine whether New York would recognize an independent equitable cause of action for medical monitoring, and if so, what the corresponding elements, statute of limitations, and accrual date would be. Caronia v. Philip Morris United States, Inc., 715 F.3d 417, 449-50 (2d Cir. N.Y. 2013).
The Court of Appeals held that without a physical injury, an increased risk of future harm does not suffice to support a separate claim in the tort context. Slip Op. at 4. The majority examined New York precedent, which had permitted consequential damages, including medical monitoring, but only where a physical harm had already been proven. Id. at 5-6. Although recognizing its authority to create (and potential policy reasons favoring) a medical monitoring claim, the Court expressed concerns that such a cause of action could flood the already overburdened courts, diverting funding from individuals with actual physical injuries. Id. at 11-13. The Court also noted that the state legislature is better-positioned to determine whether a new cause of action for medical monitoring should be established, including analysis of the costs of implementing and adjudicating such claims, and how medical monitoring regimes would be administered. Id. at 13.
In a vehement dissent joined by Judge Rivera, Chief Judge Lippman accused the majority’s decision of “thwart[ing] the ends of justice.” Slip Op. Dissent at 1. The dissent argued that this was an ideal case for exercise of equitable powers, because allowing the low-dose computerized tomography (“LDTC”) scans would be beneficial to public health, would be more cost effective than post-diagnosis treatment, would increase deterrence value, and would shift the cost onto the tortfeasor. Id. at 4-6.
The dissent dismissed the majority’s concerns, explaining that careful tailoring of the elements of the cause of action would protect against a flood of claims. Id. at 6-7. The dissent also pointed to the difficulty that many such plaintiffs would face in overcoming a contributory negligence defense, given that the plaintiffs chose to expose themselves to the carcinogens. Id. at 9-10. Judge Smith did not take part in the decision.
Several other high courts have considered this issue, and are split on whether to allow medical monitoring in absence of a physical injury. Compare Burns v. Jaquays Mining Corp., 156 Ariz. 375 (1988) (permitting medical surveillance claim in an asbestos case); Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009) (allowing cause of action in tort for cigarette smokers); Redland Soccer Club, Inc. v. Dept. of the Army, 548 Pa. 178 (1997) (allowing medical monitoring claims in volatile organic compound exposure case); Bower v. Westinghouse Elec. Corp., 206 W. Va. 133 (1999) (allowing medical monitoring costs absent physical injury where plaintiffs claimed workplace exposures to numerous hazardous substances); with Henry v. Dow Chem. Co., 473 Mich. 63 (2005) (requiring physical injury in a dioxin exposure case); Lowe v. Philip Morris USA, Inc., 344 Or. 403 (2008) (finding increased risk of future injury insufficient on its own in case brought by smokers). The New York high court’s decision to join those states that do not allow such claims may prove influential in jurisdictions that do not yet have binding precedent on this issue.