Giordano v. Mkt. Am. Inc

• Decision Date: 17 March 2010
• Docket Number: Docket No. 06-2071-cv.
• Citation: 599 F.3d 87
• Parties: John GIORDANO, Plaintiff-Appellant, V. MARKET AMERICA, INC., and The Chemins Company, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

599 F.3d 87

John GIORDANO, Plaintiff-Appellant, V. MARKET AMERICA, INC., and The Chemins Company, Inc., Defendants-Appellees.

Docket No. 06-2071-cv.

United States Court of Appeals

Second Circuit.

Argued: Nov. 8, 2007

Final Submission: April 7, 2009.

Decided: March 17, 2010.

COPYRIGHT MATERIAL OMITTED

Brian J. Isaac, Pollack, Pollack, Isaac &amp De Cicco, for Sanders, Sanders, Block &amp Woycik, P.C. (Joseph B. Viener, of counsel), New York, NY, for Plaintiff-Appellant.

Andrew Zajac, Fiedelman & McGaw Jericho, NY, for Defendant-Appellee Market America, Inc.

Edward J. Stolarski, Jr., Wilbraham Lawler & Buba, Philadelphia, PA, for Defendant-Appellee The Chemins Company, Inc.

Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges.

SACK, Circuit Judge:

Plaintiff John Giordano appeals from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) in a personal injury action filed by Giordano against defendants Market America, Inc., and The Chemins Company, Inc. Giordano alleges that dietary supplements containing the substance ephedra that the defendants supplied caused his March 1999 cerebral aneurism and subsequent medical events. On April 10, 2006, the district court grant ed summary judgment for the defendants on the grounds that Giordano's lawsuit filed on July 28, 2003, was barred by the three-year statute of limitations set forth in N.Y. C.P.L.R. § 214. See In re Ephedra Prods. Liab. Litig., Nos. 04 M.D. 1598, 05 Civ. 1018, 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 18691, at *l-2 (S.D.N.Y. Apr.10, 2006) ("Ephedra II"). The court concluded that the one-year extension of the statute of limitations provided for in NY. C.P.L.R. § 214-c(4) for situations in which the cause of the injury was not discovered during the original three-year period to file suit was inapplicable because section 214-c(4) is limited to latent injuries and that injuries caused by ephedra were not latent. Id.

The plaintiff appealed from the district court's judgment and we heard oral argument on November 8, 2007. On August 18, 2008, we remanded for the limited purpose of asking the district court to determine whether a genuine issue of material fact existed as to whether an additional requirement of N.Y. C.P.L.R. § 214-c(4) had been met, namely that Giordano "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 otherwise applicable three-year statute of limitations. See Giordano v. Mkt. Am., Inc., 289 Fed.Appx. 467, 469 (2d Cir.2008) (summary order). On February 24, 2009, in response to our question and with expressed doubt as to the standard to be applied under New York law, the district court concluded that under any possible standard there was a genuine issue of material fact as to whether sufficient information had been "discovered, identified or determined" at the relevant time. See In re Ephedra Prods. Liab. Litig., 598 F.Supp.2d 535, 537 (S.D.N.Y.2009) ("Ephedra III").

The applicability of N.Y. C.P.L.R. § 214-c(4) to Giordano's claims is now before this Court again. The resolution of this issue requires us to answer three separate questions of New York law: (1) Are the provisions of N.Y. C.P.L.R. § 214-c(4) providing for an extension of the statute of limitations in certain circumstances 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?; (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. C.P.L.R. § 214-c(4) purposes? Resolving the third question requires us to decide both the level of certainty required for knowledge to be deemed "sufficient to ascertain" the cause of an injury, and the community that must possess this knowledge—that is, whether the knowledge must be reasonably available to a plaintiff and his or her lawyers, or whether it must be reasonably available to the scientific, technical, or medical community.

In this instance, the district court found that "some studies suggesting a possible connection between ephedra and injuries similar to Giordano's were published in reputable scientific journals that were publicly available" during the three-year period after discovery of Giordano's injury, but that there was "a lack of awareness of the risks by even the most interested members of the public" during that time. Ephedra III, 598 F.Supp.2d at 537 n. 1. The three questions of statutory interpretation raised by this appeal have not been answered conclusively by New York courts. They, in turn, implicate questions of public policy pertaining to how the New York Legislature intended to balance the rights of those suffering personal injuries with the rights of defendants and with the need for judicial economy. New York courts are better situated to answer these questions than are we. We therefore certify them to the New York Court of Appeals.

BACKGROUND

Pursuant to an order of the Judicial Panel on Multidistrict Litigation, see 28 U.S.C. § 1407, the district court that decided this case is charged with managing some 500 civil actions, including this one involving claims of "personal injury or wrongful death caused by dietary supplements containing ephedra." In re Ephedra Prods. Liab. Litig., 393 F.Supp.2d 181, 184 (S.D.N.Y.2005) ("Ephedra I"). Ephedra is a plant containing "ephedrine alkaloids." Id. at 185. Until relatively recently, products containing ephedra were widely used by consumers seeking "weight loss, increased energy and improved athletic performance." Id.; see also id. at 189 n. 4.

The Food, Drug, and Cosmetic Act ("FDCA") prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food... that is adulterated...." 21 U.S.C. § 331(a). Section 402 of the FDCA provides that a "food shall be deemed to be adulterated... [i]f it is a dietary supplement or contains a dietary ingredient that... presents a significant or unreasonable risk of illness or injury...." Id. § 342(f)(1)(A). On February 11, 2004, the United States Food and Drug Administration ("FDA") effectively banned ephedra by declaring dietary supplementscontaining ephedrine alkaloids "adulterated" under the FDCA. See 21 C.F.R. § 119.1; Final Rule Declaring Dietary Supplements Containing Ephedrine Alkaloids Adulterated Because They Present an Unreasonable Risk ("FDA Final Rule"), 69 Fed.Reg. 6788 (Feb. 11, 2004). This rule became effective on April 12, 2004. Id.

The district court's opinion in Ephedra I granting in part and denying in part motions to exclude expert testimony pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), provides background regarding the alleged effects of ephedra.

According to the consolidated plaintiffs' experts:

[E]phedra can cause injury in susceptible people by increasing their blood pressure and heart rate.... [A]n individual's blood pressure and heart rate normally vary over the course of a day, week and season, and... the effects of ephedra in an individual also vary over the course of the day in relation to when it was ingested and the individual's metabolism. If ephedra can sometimes be a contributing cause of heart attack, stroke, or sudden death in susceptible people, the injury might be triggered by the coincidence of peak events, such as transient peak blood pressure due to other causes occurring at the same time as peak ephedrine blood level. The longer the duration of repeated exposure, the more likely such coincidence will occur.

Ephedra I, 393 F.Supp.2d at 192 n. 8.

According to the FDA:

People who use dietary supplements containing ephedrine alkaloids are at increased risk for serious adverse events, including heart attack, stroke, and death. Susceptible individuals (e.g., those with coronary artery disease or heart failure), many of whom may not know they have underlying illnesses, are at increased risk for adverse events because these products can cause abnormal heart rhythms (pro-arrhythmic effect), even when the product is ingested at recommended doses over a short course (one or a few doses). Over longer periods of use, the risk for adverse health effects to the general population, including susceptible individuals, increases further due to a sustained elevation in blood pressure.

FDA Final Rule, 69 Fed.Reg. at 6825.

Before the district court, all parties

agree[d] that a recommended dose of a product containing ephedra... often raises the user's blood pressure and/or heart rate during the first few hours after ingestion, and they agree[d] that any increase maintained over years in a person's usual blood pressure or heart rate significantly increases the risk of cardiac injury and stroke.

Ephedra I, 393 F.Supp.2d at 193-94 (emphasis omitted).

The district court also noted in its decision granting summary judgment to the defendants here that "ephedra acts within a few hours to cause a transitory elevation of blood pressure and heart rate and a temporary constriction of certain blood vessels." Ephedra II, 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 18691, at *3-*4.

For approximately two years, ending on March 15, 1999, Giordano used "ThermoChrome 5000, " a dietary supplement containing ephedra. Defendant-Appellee The Chemins Company, Inc., manufactured ThermoChrome 5000; defendant-appellee Market America, Inc., distributed it.

On March 15, 1999, Giordano suffered a cerebral aneurysm. He underwent neurosurgery to repair it, but suffered two strokes on March 17, 1999...