Majority Rebuffs Smokers' Medical Monitoring Claim

, New York Law Journal

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ALBANY - A divided Court of Appeals refused Tuesday to recognize a New York cause of action that would force Philip Morris to pay for perpetual medical tests for current and former smokers to detect the first signs of cancer.

The majority in the 4-2 decision conceded that there were "significant policy reasons" for recognizing a medical monitoring cause of action. But it said that taking such an action could flood the courts with the claims of tens of millions of smokers worried about the health effects of their tobacco use.

In addition, allowing plaintiffs without symptoms 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 the result of the exposure," Judge Eugene Pigott Jr. (See Profile) wrote for the majority in Caronia v. Philip Morris USA, 227.

The Legislature is in a far better position than the court to determine the "impact and consequences" of creating a medical monitoring cause of action in New York, Pigott wrote. He said that includes quantifying the "costs of implementation and the burden on the courts in adjudicating such claims."

The majority said that Appellate Division Departments in New York have consistently held that medical monitoring is an element of damages that may only be recovered after a physical injury has been proven, citing the precedent-setting Abusio v. Consolidated Edison of New York, 238 AD2d 454 (2d Dept. 1997).

But Chief Judge Jonathan Lippman (See Profile) said in a dissent that the majority was taking an "indefensible" position.

"The majority resolutely stands frozen in time as it denies plaintiffs the opportunity to take advantage of life-saving technology," Lippman wrote in an opinion in which he was joined by Judge Jenny Rivera (See Profile).

Lippman argued that developing a practical system of medical monitoring for smokers was not as imposing a task as the majority claimed it was. He said state courts in Florida and Maryland have recognized workable systems for conducting ongoing examinations of people exposed to toxic substances.

"Where, as here, it is within the Court's power to provide a vehicle for plaintiffs to seek equitable relief capable of forestalling profound suffering and death, judicial hesitance and legislative deference only serve to thwart the ends of justice," Lippman wrote.

Lippman said the reality of lung cancer, which is attributed to smoking in the overwhelming majority of cases, is that its victims cannot wait until the disease manifests itself.

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