NY High Court Rejects Cause of Action for Medical MonitoringJanuary 14, 2014 | |
AMERICAN BAR ASSOCIATION – MASS TORTS & DEVELOPMENTS
In a December 17, 2013, decision, the New York Court of Appeals refused to adopt an independent equitable cause of action for medical monitoring by a four-to-two vote in Caronia v. Philip Morris USA, Inc., No. 227 (N.Y. Dec. 17, 2013). The decision resolved a split among New York intermediate appellate courts and New York federal district courts that had addressed the issue, and placed New York in the majority of highest state courts that have addressed the issue of “no injury” medical monitoring and rejected such a cause of action. The New York court did recognize that medical monitoring could be a compensable item of damages “so long as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of action.” Slip op. at 14. (For comparison, please see our April 1, 2013 News & Developments piece regarding a similar decision by the Court of Appeals of Maryland.)
The Caronia case involved a claim for medical monitoring of cigarette smokers, who had not been diagnosed with lung cancer or were “currently ‘under investigation by a physician for suspected lung cancer.'” Slip op. at 2. The monitoring was to consist of low-dose CT scans (LDCT) of the chest. LDCT is a newer diagnostic technology that purportedly allows earlier detection of subcellular changes. In January 2013, the American Cancer Society, based on its review of several studies regarding LDCT, recommended LDCT screening for “high-risk patients . . . aged 55 to 74 years and in fairly good health, [who] have a smoking history equivalent to a pack a day for 30 years, and [who] currently smoke or have quit within the past 15 years.” In its recommendation, ACS acknowledged that the “idea of screening is appealing because it has the potential of finding the cancer earlier, when it’s easier to treat,” but also acknowledged that there are risks that limit the patients for whom such screening is appropriate.
Notably, the Massachusetts Supreme Judicial Court had adopted an independent medical-monitoring cause of action in an earlier case against Philip Morris predicated on the same theory of LDCT screening of asymptomatic smokers. Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009).
The New York Court of Appeals declined the judicial creation of the new cause of action. Writing for the majority, Judge Pigott discussed the split among the lower courts applying New York law and New York’s traditional requirement of a physical injury for tort damages, as well as the split among the highest courts of other states. While acknowledging the court’s “authority to recognize a new tort cause of action,” Judge Pigott observed the need to consider the “foreseeable and unforeseeable consequences, most especially the potential for vast, uncircumscribed liability” if a new cause of action were to be created.
The majority concluded that the multiple policy reasons militate against the creation of a new medical-monitoring tort, including that:
“[D]ispensing with the physical injury requirement could permit “tens of millions” of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor’s resources for those who have actually sustained damage” (id. at 12);
“[As] it is speculative, at best, whether asymptomatic plaintiffs will ever contract a disease; allowing them to recover medical monitoring costs with first establishing physical injury would lead to the inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure” (id. at 13); and
“The courts lack the technical expertise to implement and administer a medical monitoring program” (id.).
The court deferred to the legislature as being “in the better position to study the impact and consequences of creating such a cause of action, including the costs of implementation and the burden on the courts in adjudicating such claims.” Although not mentioned by the court, in this regard, we would note that the New York legislature should probably consider whether New York class-action procedures are sufficient to address medical-monitoring class claims and adopt any needed revisions (CPLR article 9 is in some respects less robust and developed than the federal class-action scheme).
The two dissenting judges (Chief Judge Lippman and Judge Rivera) argued that “overall fairness” compelled the recognition of an independent equitable cause of action for medical monitoring, consistent with the evolution of such standards in other jurisdictions “in response to ‘a world in which people regularly encounter environmental toxins, the effects of which are largely unknown’ and the ‘growing recognition that exposure to toxic substances . . . may cause substantial injury which should be compensable even if the full effects are not immediately apparent.'” Caronia, dissenting slip op., at 1–2. The dissent’s contention that the majority’s refusal to adopt the new cause of action is incorrect as the circumstances could not be “more worthy of the exercise of this Court’s equitable powers,” is perhaps misplaced to the extent that it would equate tobacco with all other supposed “environmental toxins,” for which purported associations between exposure and adverse health effects are far weaker. In this respect, the floodgates point relied upon by the majority would seem to have substantial merit. That is, creating a medical-monitoring cause of action would set the stage for any number of litigations based upon a myriad of substances and health effects, which suits would likely be denominated as class actions (which class action allegations raise additional concerns, as noted above).
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