Court of Appeals Expands Meaning of “Latency” Under CPLR Section 214-c

December 31, 2010 | Appeals | Health Services

In its recent decision in Giordano v. Market America, Inc. and Chemins Co., Inc., 2010 NY Slip Op 8382; 2010 N.Y. LEXIS 3284 (November 18, 2010), the New York Court of Appeals (4-3 decision) expanded the definition of latency for purposes of the application of the statute of limitations under CPLR §214-c. Giordano originated as part of the Ephedra Products Liability MDL (Multidistrict Litigation) in the U.S. District Court for the Southern District of New York. Before being banned, Ephedra, a plant containing ephedrine alkaloids, was widely used by consumers for weight loss, increased energy and improved athletic performance. The FDA effectively banned Ephedra on February 11, 2004. After using Ephedra for two years, the plaintiff in Giordano suffered a cerebral aneurysm on March 15, 1999 and underwent neurosurgery. He then suffered multiple strokes two days later leaving him neurologically impaired, but his physicians were unable to determine the cause.

CPLR §214-c(2) provides in pertinent part:

Notwithstanding the provisions of section 214, the three-year statute of limitations within which an action to recover damages for personal injury…caused by the latent effects of exposure to any substance…must be commenced, shall be computed from the date of discovery of the injury by the plaintiff or from the date, when through the exercise of reasonable diligence, such injury should have been discovered by the plaintiff, whichever is earlier.

CPLR §214-c(4) provides in pertinent part:

Notwithstanding the provisions of subdivision two of this section, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced within one year of such discovery of the cause of the injury; provided however, if any such action is commenced…after the period in which it would otherwise have been authorized pursuant to subdivision two…of this section, the plaintiff…shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action…would have been authorized and that he has otherwise satisfied the requirements of subdivisions two…of this section. (emphasis added)

By way of news reports in February 2003, plaintiff became aware that the sudden death of a major-league baseball player (Steve Bechler of the Baltimore Orioles) may have been linked to his use of an Ephedra-based dietary supplement. Giordano commenced a lawsuit in New York State Supreme Court on July 28, 2003 (over four years after the strokes). Defendants removed the case to federal court based on diversity of citizenship and then moved for summary judgment on statute of limitations grounds. The Southern District determined that CPLR §214-c did not extend the statute of limitations for the time it took plaintiff to discover that his stroke may have been caused by Ephedra. Since the action was not commenced within three years of the stroke, defendants’ motions for summary judgment were granted. 2006 U.S. Dist. LEXIS 18691. The Court found that a stroke allegedly caused by Ephedra was not an injury caused by latent effects, i.e., an “injury that was not discoverable immediately upon its occurrence”. It also referred to evidence admitted during the Court’s Daubert hearings which showed that Ephedra can cause a transitory elevation of blood pressure and heart rate and a temporary constriction of certain blood vessels within a few hours.

On appeal, the Second Circuit vacated the judgment and remanded the cause back to the Southern District to decide whether there was a genuine issue of material fact as to whether sufficient scientific or medical knowledge was available to Giordano such that he could have ascertained the cause of his injury prior to the expiration of the three-year limitations period of CPLR §214-c(2). 289 Fed. Appx. 467, 2008 U.S. App. LEXIS 17732. On remand, the District Court determined that there remained a genuine factual dispute over whether plaintiff could have ascertained the cause of his injury prior to March 2002 (three years post-stroke) and, as such, sent the case back to the Second Circuit.

The question for the Second Circuit was whether CPLR §214-c(4), which under certain circumstances, provides for a one-year limitations period running from the date of discovery of the cause of injury, saved Giordano’s claim. The Court determined that a resolution required answers to three separate questions of New York law which had not been previously addressed and involved “questions of public policy that New York courts are better situated to resolve…”, and which were certified to the New York Court of Appeals: (1) Are the provisions of N.Y. CPLR §214-c(4) limited to actions for injuries caused by the latent effects of exposure to a substance? (2) Can an injury that occurs within 24 to 48 hours of exposure to a substance be considered “latent” for these purposes? and (3) What standards should be applied to determine whether a genuine issue of material fact exists for resolution by a trier of fact as to whether “technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff’s] injury” was “discovered, identified or determined” for N.Y. CPLR §214-c(4) purposes? 599 F.3d 87 (2010). The certified questions were accepted by the New York Court of Appeals. 14 N.Y.3d 832 (2010)

Over a vigorous dissent, in a decision rendered on November 18, 2010, the New York Court of Appeals determined that: (1) CPLR §214-c(4) is limited to actions for injuries caused by the latent effects of exposure to a substance (2) an injury that occurs within hours of exposure to a substance can be considered “latent” for these purposes and (3) “technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff’s] injury” is “discovered, identified or determined” within the meaning of the statute when the existence of the causal relationship is generally accepted within the relevant technical, scientific or medical community (pursuant to Frye v. United States, 293 Fed 1013 (D.C. Cir 1923). 2010 NY Slip Op 8382; 2010 N.Y. LEXIS 3284 (emphasis added) The majority found that “even a brief period of latency can be important when the problem is one of determining an injury’s cause – – the problem with which CPLR §214-c(4) is concerned”. The basis was that, since plaintiff’s symptoms did not occur immediately upon ingestion, but rather, several hours later, it may have been difficult to say whether there was a causal connection between Ephedra and the strokes. Consequently, the court determined it “entirely plausible that several hours’ delay in the manifestation of symptoms could lead to a delay of years in detecting an injury’s cause.” As such, it concluded that it “seems reasonable that the authors of CPLR §214-c(4) would have considered even a few hours of latency enough to justify the extension of the statute of limitations authorized by that subdivision.”

The Court expressed its disagreement with defendants (and its dissenting colleagues) who argued that the legislative history of the statute revealed it was concerned only with plaintiffs who were unaware that they had been injured until after the limitations period had expired. Rather, it opined that, while the problem of injuries going undiscovered for years was the Legislature’s primary concern, it was not the sole concern because, if it was, then there was no need to enact subdivision four of CPLR §214-c in the first place. Of course, the dissenting opinion posits that the benefits of CPLR §214-c(4) should only be afforded to those plaintiffs that cannot discover their injury within the limitations period; the premise being that a latent disease is generally understood to be an illness that does not manifest clinically diagnosable symptoms until years after initial exposure to the disease-causing agent. While it held that the Frye standard governed the determination of the state of technical, scientific and medical knowledge pertaining to the relationship between Ephedra and strokes, the majority stated that the federal courts dealing with the Ephedra MDL were more familiar with the science. Therefore, certified question #3 was to be answered in accordance with the opinion.

As stated in the Giordano dissent, it would be difficult to predict the practical effects of the majority opinion. The consequence of the decision is a six-year statute of limitations in New York (running from the date of manifestation of an injury) for any purported side effect of a drug or other substance ingested, subject to the restrictions of CPLR §214-c(4) — the five-year and one-year limits, and the required proof of the state of scientific/medical knowledge at the relevant time. The dissent’s argument, to wit, that this was not the Legislature’s intent, certainly appears reasonable. It will be interesting to see whether, as feared by the dissenters, the Court of Appeals has opened the proverbial Pandora’s Box.

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