Caronia v. Philip Morris United States, Inc.

• Decision Date: 17 December 2013
• Citation: 2013 N.Y. Slip Op. 08372,982 N.Y.S.2d 40,22 N.Y.3d 439,5 N.E.3d 11
• Court: New York Court of Appeals Court of Appeals
• Parties: Marcia L. CARONIA et al., Appellants, v. PHILIP MORRIS USA, INC., Respondent.

22 N.Y.3d 439

5 N.E.3d 11

982 N.Y.S.2d 40

2013 N.Y. Slip Op. 08372

Marcia L. CARONIA et al., Appellants,

v.PHILIP MORRIS USA, INC., Respondent.

Court of Appeals of New York.

Dec. 17, 2013.

Phillips & Paolicelli LLP, New York City (Victoria E. Phillips, Steven J. Phillips, Aryeh L. Taub and Lisa W. Davis of counsel), for appellants.

Latham & Watkins LLP, Boston, Massachusetts (Kenneth J. Parsigian of counsel), for respondent.

Product Liability Advisory Council, Inc., Reston, Virginia (Hugh F. Young, Jr., of counsel), Reed Smith LLP, New York City (Daniel K. Winters of counsel), Reed Smith LLP, Philadelphia, Pennsylvania (James M. Beck of counsel), and Reed Smith LLP, Pittsburgh, Pennsylvania (David J. Bird of counsel), for Product Liability Advisory Council, Inc., amicus curiae.

Quinn Emanuel Urquhart & Sullivan, LLP, New York City (Sheila L. Birnbaum, Douglas W. Dunham, Ellen P Quackenbos and Douglas E. Flemming, III, of counsel), for American Chemistry Council and another, amici curiae.

Jones Day, New York City (Sharyl A. Reisman of counsel), Jones Day, Boston, Massachusetts (Traci L. Lovitt of counsel), Jones Day, Washington, D.C. (Mary Ellen Powers of counsel), Jones Day, Houston, Texas (Nancy MacKimm of counsel), National Chamber Litigation Center, Inc., Washington, D.C. (Kathryn Comerford Todd, Steven P. Lehotsky and Sheldon Gilbert of counsel), American Coatings Association, Inc. (Thomas J. Graves of counsel), Hollingsworth LLP (Eric G. Lasher of counsel), National Association of Manufacturers (Linda Kelly, Quentin Riegel and Patrick Forrest of counsel), and Pharmaceutical Research and Manufacturers of America (James M. Spears and Melissa B. Kimmel of counsel) for Business Council of New York State, Inc., and others, amici curiae.

Kelner & Kelner, New York City (Joshua D. Kelner of counsel), for American Legacy Foundation and another, amici curiae.

OPINION OF THE COURT

PIGOTT, J.

The United States Court of Appeals for the Second Circuit has asked us to determine whether this State recognizes an independent equitable cause of action for medical monitoring and, if so, what the elements, appropriate statute of limitations and accrual date are for that particular cause of action.

I

Plaintiffs, who are all over the age of 50, are current and/or former smokers of Marlboro cigarettes with histories of 20 pack-years ¹ or more. None of the plaintiffs has been diagnosed with lung cancer, nor are they currently “under investigation by a physician for suspected lung cancer.” Plaintiffs commenced this putative class action against Philip Morris USA, Inc. in federal court asserting claims sounding in negligence, strict liability and breach of the implied warranty of merchantability. Plaintiffs requested equitable relief, namely, the creation of a court-supervised program, at Philip Morris's expense, that would provide them with Low Dose CT Scanning of the chest (LDCT), which plaintiffs claim is a type of medical monitoring that assists in the early detection of lung cancer. At the completion of discovery, the District Court granted Philip Morris summary judgment with regard to plaintiffs' negligence and strict liability claims, but ordered further briefing concerning the breach of implied warranty claim and on the issue whether our Court would recognize an independent cause of action for medical monitoring ( see Caronia v. Philip Morris USA, Inc., 2010 WL 520558, *1, 2010 U.S. Dist. LEXIS 12168, *2–3 [E.D.N.Y. Feb. 11, 2010] ).

In the interim, plaintiffs served a fourth amended complaint asserting, in addition to their prior causes of action, a separate, equitable cause of action for medical monitoring, seeking the establishment of the medical monitoring program. The District Court dismissed the breach of implied warranty and medical monitoring claims, holding that although this Court would likely recognize the latter claim, plaintiffs “failed to plead that Philip Morris's allegedly tortious conduct is the reason that they must now secure a monitoring program that includes LDCT scans” ( Caronia v. Philip Morris USA, Inc., 2011 WL 338425, *3, 2011 U.S. Dist. LEXIS 12610, *8–9 [E.D.N.Y. Jan. 13, 2011] ). The United States Court of Appeals for the Second Circuit affirmed the dismissal of plaintiffs' negligence, strict liability and breach of implied warranty claims, but, acknowledging that this Court has not considered whether an independent cause of action for medical monitoring exists in New York, certified the following questions of law:

“(1) Under New York Law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, pursue an independent equitable cause of action for medical monitoring for such a disease?

“(2) If New York recognizes such an independent cause of action for medical monitoring,

“(A) What are the elements of that cause of action?

“(B) What is the applicable statute of limitations, and when does that cause of action accrue?” (715 F.3d 417, 450 [2013] ).

We answer the first certified question in the negative, and decline to answer the second certified question as academic.

II

Plaintiffs do not claim to have suffered physical injury or damage to property. They assert, rather, that they are at an “increased risk” for developing lung cancer and would benefit from LDCT monitoring, which they claim would allow them to discover the existence of cancers at an earlier stage, leading to earlier treatment.

A threat of future harm is insufficient to impose liability against a defendant in a tort context ( see Prosser & Keeton, Torts § 30 at 165 [5th ed. 1984] ). The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state's tort system ( see Kimbar v. Estis, 1 N.Y.2d 399, 403, 153 N.Y.S.2d 197, 135 N.E.2d 708 [1956] [no action will lie in negligence absent a “resultant injury to plaintiff”]; see also Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106–107, 463 N.Y.S.2d 398, 450 N.E.2d 204 [1983] [plaintiff must sustain injury or damage before being able to recover under a strict products liability theory] ). The physical harm requirement serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the factfinder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims.

Having alleged no physical injury or damage to property in their complaint, plaintiffs' only potential pathway to relief is for this Court to recognize a new tort, namely, an equitable medical monitoring cause of action. Plaintiffs claim that such a cause of action is “consistent with existing New York law,” pointing to Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dept.1984), a case involving a motion by plaintiffs seeking class certification to bring toxic exposure claims against a landfill owner, and, in particular, seeking recovery of future medical monitoring costs ( id. at 131, 477 N.Y.S.2d 242). Certain of the Askey plaintiffs alleged actual injury from the exposure, while others, like plaintiffs here, claimed only an increased risk of developing cancer or other diseases. The latter plaintiffs sought the imposition of a constructive trust on the owner's property to cover medical monitoring costs ( id. at 132–133, 477 N.Y.S.2d 242). Addressing the plaintiffs who had alleged no injury, the Appellate Division stated that “damages resulting from the enhanced risk of cancer and the threat of future harm not yet realized are not compensable in a tort action ..., [but that] there is a basis in law to sustain a claim for medical monitoring as an element of consequential damage ” ( id. at 135, 477 N.Y.S.2d 242 [emphasis supplied] ). The Askey court derived its rationale from our holding in Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824 (1936),rearg. denied271 N.Y. 531, 2 N.E.2d 680 (1936), which involved a worker who sued his employer for exposure to a toxic dust that resulted in his contracting an incurable lung disease ( id. at 297, 200 N.E. 824).

The issue in Schmidt, however, involved when the cause of action from the toxic exposure accrued. This Court concluded that the injury to the plaintiff occurred “when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust,” making the defendant responsible for any damages that flowed from that injury ( id. at 301, 200 N.E. 824). Even in Schmidt, however, this Court required some injury or damage to the plaintiff before he could recover. Having concluded that the injury or damage occurred at the time of “invasion” of the plaintiff's “personal or property rights,” we addressed the issue of damages, holding that

“[c]onsequential damages may flow later from an injury too slight to be noticed at the time it is inflicted. No new cause of action accrues when such consequential damages arise. So far as consequential damages may be reasonably anticipated, they may be included in a recovery for the original injury, though even at the time of the trial they may not yet exist” ( id. at 300–301, 200 N.E. 824 [emphasis supplied] ).

The Askey court, relying on Schmidt, concluded that the plaintiffs exposed to the landfill toxins had “an increased risk of invisible genetic damage and a present cause of action for their injury,” and could recover “ ‘reasonably anticipated’ consequential damages,” including medical monitoring, so long as the plaintiffs could “establish with a reasonable degree of medical certainty that such expenditures [were] ‘reasonably anticipated’ to be incurred by reason of their exposure” ( Askey, 102 A.D.2d at 137, 477 N.Y.S.2d 242). The accrual rule set forth in Schmidt, and referenced in Askey, was replaced by CPLR 214–c, which requires a plaintiff...