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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.

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 132


About this Author

John S. Guttmann Litigation Attorney Beveridge & Diamond Washington, DC & New York, NY
Principal Attorney

John Guttmann represents companies in complex, high-stakes toxic tort, product liability, and environmental litigation.

Mr. Guttmann 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, John offers clients the benefit of all three perspectives in charting a course of action that...

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its operations. The favorable result that Dan and his team achieved allowed the client to avoid losing millions of dollars’ worth of production.

In a toxic tort case involving an alleged international conspiracy, Dan led a successful briefing effort that resulted in early dismissal of all claims against his clients, saving them from protracted litigation and protecting their reputation.

While focusing his practice on litigation, Dan also provides practical and actionable advice designed to minimize environmental risk and potential liabilities. 

An active member of various bar associations, Dan is a past chair of the American Bar Association’s Environmental Litigation and Toxic Torts Committee, and currently co-chairs the New York State Bar Association Environment Section’s Toxic Torts Committee. Dan has also served as a member of the firm’s Management Committee.

Before joining Beveridge & Diamond, Dan clerked for The Honorable Carlos R. Moreno, U.S. District Judge for the Central District of California. Prior to attending law school, Dan served as editor-in-chief of the environmental news service Greenwire.

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