Medical Monitoring Cause of Action Rejected
On Dec. 17, the New York Court of Appeals, by a vote of 4-2, rejected declaration of an independent equitable cause of action for medical monitoring on behalf of heavy smokers who were not diagnosed with lung cancer and not under investigation by a physician for suspected lung cancer. Caronia v. Philip Morris USA,1 a federal lawsuit by current and former heavy smokers over the age of 50, came to New York's highest court via certified questions from the U.S. Court of Appeals for the Second Circuit. The federal appellate court asked whether New York recognizes an independent medical monitoring cause of action and, if so, what the elements, appropriate statute of limitations and accrual date for such an action were. When it answered the first question "no," the state high court declined to answer the other questions as "academic."
The Court of Appeals was not writing on a blank slate. The medical monitoring controversy had a robust history. Thus, in 1997, in an asbestos case, Metro-North Commuter R.R. v. Buckley,2 the U.S. Supreme Court refused to recognize a tort claim for future medical monitoring costs under the Federal Employers' Liability Act where the asymptomatic plaintiff was exposed to asbestos but had not manifested symptoms of the disease. Furthermore, the medical monitoring issue has split sister states' high courts, as reflected by the case citations in the Caronia opinion. Thus, for example, Michigan and Oregon courts have refused to recognize such independent equitable claims while courts in Massachusetts, West Virginia, Pennsylvania and Arizona have allowed them in some form.3 Additionally, Caronia cites law review articles pro and con debating many policy questions.
'Caronia' and New York Law
The plaintiffs, though heavy smokers, had not contracted lung cancer. Thus, they had not yet suffered an injury or physical harm, a traditional and fundamental requirement for pursuing a tort recovery in New York. Rather, they asserted an "increased risk" for developing cancer and thus wanted a court-supervised program of Low Dose CT Scanning (LDCT) of the chest to assist in early detection and treatment of the disease. They argued that such an independent equitable remedy could (and should) be declared, as other state courts had done. They even contended that such a cause of action was "consistent with existing New York law," citing a 1984 Appellate Division decision involving a toxic landfill.4 The rationale of that ruling was, in turn, derived from the Court of Appeals' 1936 decision in Schmidt v. Merchants Desp. Trans.5
But each of these older cases involved primarily the question of when the "injury" had occurred for purposes of accrual of the causes of action. The accrual rule of Schmidt, however, was replaced by CPLR 214-c which requires a plaintiff to commence a cause of action for personal injury damages caused by latent effects of exposure to harmful substances within three years from the date the injury was discovered or could have been discovered "through the exercise of reasonable diligence." Plus, neither of these older cases had questioned New York's long-held physical harm requirement. Rather, "they merely accepted, for accrual purposes, that the injury occurred at the time of exposure." In light of the enactment of the CPLR accrual rule, those older decisions now had to be viewed "in…proper context."6
The court observed that medical monitoring is an element of damages that may be recovered "only after a physical injury has been proven, i.e., that it is a form of remedy for an existing tort."7 Thus, for example, Appellate Division rulings already have discussed equitable monitoring relief where "the plaintiffs alleged either personal injury or property damage or both."8 But the Caronia case was different because the plaintiffs did not yet suffer an injury or a physical harm and none was alleged. This meant that a fundamentally new cause of action would have to be declared by the court. This divisive issue bristled with significant questions of policy. It already had divided courts and commentators around the country. It proved to divide the judges on New York's highest court as well.
Judge Eugene F. Pigott Jr. wrote the opinion of the court with which Judges Victoria A. Graffeo, Susan Phillips Read and Sheila Abdus-Salaam concurred. The court reasoned as follows. Although the court has "authority" to recognize a new tort cause of action, it must be exercised "responsibly." A new cause of action can have both "foreseeable and unforeseeable consequences, most especially the potential for vast uncircumscribed liability." Competing interests are involved. Although significant policy reasons favor recognizing the medical monitoring cause of action, "the potential systemic effects of creating a new, full-blown tort law cause of action cannot be ignored." For example, dispensing with the physical injury requirement could permit "tens of millions" of potential plaintiffs to recover monetary costs, "effectively flooding the courts while concomitantly depleting the purported tortfeasor's resources for those who have actually sustained damage."9
Further, it is speculative, at best, whether asymptomatic plaintiffs will ever contract a disease. Allowing them to recover medical monitoring costs without 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." Nor is there, from a practical standpoint, a framework regarding how such a medical monitoring program would be implemented and administered. Courts generally lack the "technical expertise" necessary to effectively administer a program "heavily dependent on scientific disciplines such as medicine, chemistry, and environmental science."
Moreover, the Legislature is "plainly 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 courts in adjudicating such claims." The foregoing policy reasons militated against creation of an independent cause of action. Without evidence of present physical injury or damage to property, allowing monitoring claims would be a "significant deviation" from the state's tort jurisprudence. Those plaintiffs who have sustained physical injury, however, are not prevented from seeking the remedy of medical monitoring. These would be consequential damages premised upon establishing entitlement to damages on an already existing tort cause of action.10
Chief Judge Jonathan Lippman wrote a dissenting opinion with which Judge Jenny Rivera concurred. (Judge Robert S. Smith took no part.) The dissent posited that "overall fairness" demands that New York recognize an independent monitoring action "for smokers who can prove that their enhanced risk of cancer was caused by the wrongful conduct of tobacco companies." It is "contrary to the spirit of New York Law" to deny these plaintiffs relief in equity. Policy justifications are compelling: (1) such claims promote the public health interest; (2) a monitoring program has economic benefits for both plaintiffs and tobacco companies; and (3) defendant's payment of medical monitoring costs serves a "deterrence" function. Further, argued the dissent, the fear of frivolous claims and limitless liability can be addressed by "carefully tailor[ing] the elements of a cause of action." When "properly tailored," the cause of action would "set a high bar for plaintiffs to meet, dispelling concerns of any onslaught of meritless litigation."
The policy debate reflected in the majority and dissenting opinions is well-expressed for both sides. Yet, it seems that the stakes of the controversy about creating a new monitoring cause of action are far greater than the smokers-versus-tobacco company scenario presented in Caronia and focused upon by the judges. As large as that is, the ramifications of allowing such new monitoring claims would not be cabined by tobacco cases alone. Indeed, just the case law discussed in the court's opinions involves many kinds of health exposures other than tobacco. The modern litigation era has seen explosive growth in toxic tort, pharmaceutical, chemical, environmental pollution and medical claims. Individual lawsuits as well as class actions, mass torts, consolidated cases and the like are filed ubiquitously. And the development of nanotechnology is spawning a new genre of health claims attending a new technological frontier.
Thus, had the Court of Appeals gone down a medical-monitoring path in Caronia for those smokers who had no disease but who claimed only an "increased risk," what about the potential claims of "increased risks" alleged in all other current and future toxic exposure settings? Could all such claimants be entitled to sue for various types of medical monitoring relief? While the judges in Caronia spoke of LDCT scanning alone, other "increased risks" in other settings might require diverse screening and investigative techniques that are more intensive and expensive. Further, since the underlying premise is that such equitable relief programs would be court-administered, would that course not thrust courts into the medical administration business whenever "increased risks" are broadly alleged? The broad polycentric issues do have the feel of a legislative challenge rather than one for the courts to undertake.
Michael Hoenig is a member of Herzfeld & Rubin.
1. 2013 NY Slip Op 08372 (N.Y. Ct. App. Dec. 17, 2013).