715 F.3d 417 (2nd Cir. 2013), 11-0316-cv, Caronia v. Philip Morris USA, Inc.

Docket Nº:11-0316-cv.
Citation:715 F.3d 417
Opinion Judge:KEARSE, Circuit Judge:
Party Name:Marcia L. CARONIA, Linda McAuley, and Arlene Feldman, Plaintiffs-Appellants, v. PHILIP MORRIS USA, INC., Defendant-Appellee.
Attorney:Victoria E. Phillips, New York, N.Y. (Steven J. Phillips, Stanley J. Levy, Jerome H. Block, Amber R. Long, Lisa W. Davis, Levy Phillips & Konigsberg, New York, NY, on the brief), for Plaintiffs-Appellants. Sheila Birnbaum, New York, N.Y. (John H. Beisner, Jessica D. Miller, Geoffrey M. Wyatt, Ska...
Judge Panel:Before KEARSE, LOHIER, and DRONEY, Circuit Judges.
Case Date:May 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 417

715 F.3d 417 (2nd Cir. 2013)

Marcia L. CARONIA, Linda McAuley, and Arlene Feldman, Plaintiffs-Appellants,


PHILIP MORRIS USA, INC., Defendant-Appellee.

No. 11-0316-cv.

United States Court of Appeals, Second Circuit.

May 1, 2013

Argued: March 1, 2012.

Page 418

[Copyrighted Material Omitted]

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Victoria E. Phillips, New York, N.Y. (Steven J. Phillips, Stanley J. Levy, Jerome H. Block, Amber R. Long, Lisa W. Davis, Levy Phillips & Konigsberg, New York, NY, on the brief), for Plaintiffs-Appellants.

Sheila Birnbaum, New York, N.Y. (John H. Beisner, Jessica D. Miller, Geoffrey M. Wyatt, Skadden, Arps, Slate, Meagher & Flom Washington, D.C.; Gary R. Long, John K. Sherk, III, Shook, Hardy & Bacon, Kansas City, MO; Tammy B. Webb, Shook, Hardy & Bacon, San Francisco, CA, on the brief), for Defendant-Appellee.

Before KEARSE, LOHIER, and DRONEY, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiffs Marcia L. Caronia, Linda McAuley, and Arlene Feldman appeal from a judgment of the United States District Court for the Eastern District of New York, Carol Bagley Amon, Judge, dismissing their tort claims alleging negligence, strict products liability, and breach of the Uniform Commercial Code (" UCC" ) implied warranty of merchantability in connection with the design, manufacture, and sale by defendant Philip Morris USA, Inc. (" Philip Morris" ), of cigarettes that allegedly contain unnecessarily dangerous levels of carcinogens when smoked by humans, and their independent equitable claim seeking to require Philip Morris to fund a program of medical monitoring for longtime smokers of Marlboro cigarettes who have not been diagnosed with, but are at risk for, lung cancer. The district court granted Philip Morris's motions for summary judgment dismissing plaintiffs' negligence and strict liability claims on the ground that they were untimely, and dismissing the breach-of-implied-warranty claims on the grounds that plaintiffs' earliest such claims were untimely, see

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Caronia v. Philip Morris USA, Inc., No. 06-CV- 224, 2010 WL 520558 (E.D.N.Y. Feb. 11, 2010) (" Caronia I " ), and that the timely warranty claims were not supported by sufficient evidence of breach, see Caronia v. Philip Morris USA, Inc., No. 06-CV-224, 2011 WL 338425 (E.D.N.Y. Jan. 13, 2011) (" Caronia II " ).Pursuant to Fed.R.Civ.P. 12(b)(6), the court granted Philip Morris's motion to dismiss plaintiffs' free-standing claim for medical monitoring of Marlboro smokers who lack symptoms of smoking-related disease, ruling that plaintiffs failed to state a claim on which relief can be granted because they could not sufficiently plead that their injuries— i.e., their increased risk of cancer from smoking Marlboro cigarettes— were proximately caused by Philip Morris's conduct. See Caronia II. On appeal, plaintiffs contend principally that their negligence and products liability claims are timely and that they adequately pleaded proximate cause in their claims for breach of implied warranty and in their independent claim for medical monitoring. For the reasons that follow, we affirm the dismissal of plaintiffs' negligence, strict liability, and breach-of-warranty claims; with respect to plaintiff's free-standing equitable claim for medical monitoring, we certify several questions, detailed in Part III below, to the Court of Appeals for the State of New York with respect to the existence of such a claim under New York State law, and, if such a claim is recognized, as to the elements and accrual of such a claim.

A. Plaintiffs' Negligence, Strict Liability, and Warranty Claims 420
B. The Relief Requested 422
C. Philip Morris's First Motion for Summary Judgment 422
1. The Strict Products Liability and Negligence Claims 422
2. The Breach-of-Warranty Claims 424
D. Plaintiffs' Fourth Amended Complaint 425
A. Untimeliness of the Negligence and Strict Liability Claims 428
1. The Continuing Exposure Theory 429
2. The Newly-Available Relief Theory 431
B. Summary Dismissal of the Breach of Implied Warranty Claims 433
A. Decisions of New York State Courts 434
B. Decisions by Federal District Courts in New York 437
C. Decisions by Other States' Highest Courts 438
D. Elements of an Independent Medical Monitoring Cause of Action 446
E. Certification of Questions to the New York Court of Appeals 449
I. BACKGROUND Plaintiffs, who commenced this action on January 19, 2006, seeking to pursue it as a class action, are residents of New York State (" State" ) who, within the State, smoked Marlboro cigarettes— defined in plaintiffs' pleadings as the entire line of cigarettes manufactured and sold by Philip Morris under the " Marlboro" brand. The claims at issue on this appeal are those asserted in plaintiffs' Third Amended Complaint (or " 3rd Am. Comp." ) and Fourth Amended Complaint (or " 4th Am. Comp." ) (collectively the " Complaints" ). A. Plaintiffs' Negligence, Strict Liability, and Warranty Claims Plaintiffs are persons age 50 years or older who currently smoke Marlboro cigarettes, Page 421 or ceased smoking them within one year prior to the commencement of this lawsuit, and smoked Marlboro cigarettes for at least 20 pack-years. ( See 4th Am. Comp. ¶¶ 22-27; 3rd Am. Comp. ¶¶ 23-28.) A " pack [-]year" is defined in the Complaints as " the number of packs of cigarettes smoked per day multiplied by the number of years," e.g., one pack of cigarettes per day for one year equals one pack-year, and two packs per day equal two pack-years. (4th Am. Comp. ¶ 26, n.2; 3rd Am. Comp. ¶ 27, n.2.) " None of the plaintiffs is presently diagnosed with lung cancer" (4th Am. Comp. ¶ 28; 3rd Am. Comp. ¶ 29) " or under investigation by a physician for suspected lung cancer" (Complaints ¶ 1(e).) Plaintiffs contend, however, that lung cancer is the leading cause of cancer deaths in the United States and is responsible for the deaths of 160,000 Americans annually ( see id. ¶ 4); that more than 80 percent of those deaths result from cigarette smoke ( see id. ¶ 5); and that plaintiffs " are at significantly increased risk for developing lung cancer as a consequence of their use of Marlboro cigarettes ... specifically as a consequence of the excess quantities of carcinogens delivered by Marlboro cigarettes" (4th Am. Comp. ¶ 29; 3rd Am. Comp. ¶ 30). The Complaints alleged that, during the relevant time period, Marlboro cigarettes regularly delivered between 6 and 17 milligrams of tar ( see Complaints ¶ 53), a substance that " contains carcinogens which cause lung cancer" ( id. ¶ 47), despite the existence of feasible alternatives for the manufacture of cigarettes delivering one milligram of tar or less ( see id. ¶ 61). The Complaints alleged that Philip Morris had the ability to employ " feasible alternative designs which would have drastically reduced the cancer causing content of Marlboro cigarettes" ( id. ¶ 18), such as by switching to a tobacco blend that would reduce or eliminate the quantity of " Burley" tobacco— known to contain high levels of cancer-causing nitrosamines— used in Philip Morris cigarettes ( id. ¶¶ 64-67). The Complaints also alleged that although smokers had been found by independent agencies to have a tendency to " compensate" for lower tar and nicotine levels in " light" cigarettes by taking " deeper, more intense" puffs (Complaints ¶ 56; see id. ¶ 57), Philip Morris had the technological ability to use a filter that would thwart such tendencies and deliver low overall levels of carcinogens simply by increasing its cigarettes' " ‘ resistance to draw’ " ( id. ¶ 60; see id. ¶¶ 61-64). Philip Morris nonetheless allegedly chose to market Marlboro " Light" cigarettes that were " intentionally designed to permit full compensation" ( id. ¶ 60; see also id. ¶¶ 58-59), allowing smokers of Marlboro Light cigarettes to inhale " approximately the same amount of tar as delivered by regular Marlboro ‘ Full Flavor’ cigarettes" ( id. ¶ 59). In sum, the Complaints alleged that although Philip Morris knew at all relevant times that it was feasible to lower the carcinogenic content of its cigarettes ( see, e.g., Complaints ¶¶ 62-65), it " purposely designed all of its Marlboro cigarettes to deliver an excessive amount of carcinogens when smoked by humans" ( id. ¶ 54; see also id. ¶¶ 63, 65-66). Plaintiffs alleged that as a result of Philip Morris's voluntary, negligent, reckless, and/or intentional design of Marlboro cigarettes to deliver excessive amounts of carcinogens ( see, e.g., 3rd Am. Comp. ¶¶ 86, 94), when it knew or should have known that such cigarettes caused lung cancer or increased the risk of lung cancer and thus were defective products not reasonably safe for their intended use ( see id. ¶¶ 84-85), plaintiffs and members of the proposed Page 422 class— " composed of at least tens of thousands of persons" (Complaints ¶ 35)— were placed at significantly increased risk of developing lung...

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