Medical Monitoring: A Recent Ruling in New York

Despite the absence of a present physical injury, courts have been willing to award medical monitoring expenses as part of consequential damages where plaintiffs sustain their burden of proof under a traditional theory of liability, such as strict liability or negligence.

But where plaintiffs cannot sustain their prima facie case in tort, can they proceed on an independent cause of action for medical monitoring?

The answer is “yes” in Massachusetts, West Virginia, Pennsylvania, and Arizona. The appellate courts in each of these states have recognized an independent cause of action for medical monitoring. See Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 225-227 (2009); Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 140-42 (1999); Redland Soccer Club, Inc. v. Dept. of the Army and Dept. of Defense of the U.S., 548 Pa. 178, 195-96 (1997); Burns v. Jaquays Mining Corp., 156 Ariz. 375, 380 (Ariz. Ct. App. 1988).

The answer is “not any longer” in Louisiana, where the state's highest court recognized an independent cause of action for medical monitoring ' only to have the state legislature amend its civil code to eliminate it as a compensable item of damage absent a manifest injury or damage. Compare Bourgeois v. A.P. Green Industries, Inc., 716 So. 2d 355 (1998), with La. Civ. Code Ann. art. 2315.

New York State's highest court recently tackled this question in Caronia v. Philip Morris USA, Inc., 2013 N.Y. Slip Op. 08372 at *3 (Dec. 17, 2013), and answered with a resounding “no.”

New York Court Decides

In Caronia , the New York Court of Appeals addressed this issue in the context of a putative class action against cigarette manufacturer Phillip Morris USA, Inc. The plaintiffs were current or former smokers who had not been diagnosed with lung cancer and were asymptomatic. They asserted that they were at an increased risk for developing lung cancer and demanded that Phillip Morris establish and fund a court-supervised medical monitoring program that would promote early diagnosis and treatment of cancer. The plaintiffs sued under the theories of negligence, strict liability, and breach of warranty, and the district court ultimately dismissed these claims as untimely. The district court further dismissed the medical monitoring claim on the grounds 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.” Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 420 (2d. Cir. 2013).

The plaintiffs appealed to the Second United States Circuit Court of Appeals. Id. The Second Circuit affirmed the district court's dismissal of the negligence, strict liability, and breach of warranty claims. Id.

The Second Circuit turned to the plaintiffs' remaining claim for medical monitoring and evaluated whether it could proceed as an independent cause of action under New York law. The court conducted a comprehensive survey of relevant case law from New York State and federal courts, as well as in the highest courts in other states. Id. at 434-446. However, the court found that none of the New York courts had directly addressed the question of whether the state recognizes an independent cause of action for medical monitoring. Id. at 449. The court further observed: “[W]here the plaintiffs have alleged tortious exposure to toxic substances but have not alleged that they suffered physical injury, the New York intermediate appellate courts have ruled that the cost of medical monitoring may be awarded as an item of consequential damages, most of the federal district courts sitting in New York have opined that New York would recognize an independent claim for medical monitoring, and the highest courts of other states have divided as to whether or not the plaintiff may maintain an independent medical monitoring cause of action.” Id. at 449.

The Second Circuit thus concluded that New York's highest court was better suited to resolve this issue. It certified the following questions to the New York Court of Appeals:

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?

Caronia v. Philip Morris USA, Inc. , 2013 N.Y. Slip Op. 08372 at *3 (Dec. 17, 2013).

The New York Court of Appeals accepted certification of these questions on May 30, 2013, and issued its opinion on Dec. 17, 2013.

The court refused to recognize an independent equitable medical monitoring cause of action under New York law where the plaintiff has suffered no physical injury. The court articulated two bases for its decision. First, allowing such a claim would constitute a significant deviation from New York tort jurisprudence. Second, policy reasons militate against a judicially created cause of action for medical monitoring.

Analysis of New York Tort Jurisprudence

The court explained, “[t]he requirement that a plaintiff sustain a physical harm before being able to recover in tort is a fundamental principle of our state's tort system.” Id . at *4 (citations omitted). This requirement defines the class of persons who have standing to bring a claim; provides a basis for the fact-finder to determine whether a litigant actually possesses a claim; and protects courts from being jammed with “frivolous and unfounded claims.” Id. Accordingly, the court reiterated that New York tort law does not impose liability against a defendant for “a threat of future harm,” nor does New York currently recognize an independent cause of action for medical monitoring. Id.

The court then dismantled the plaintiffs' argument that the court should create a new tort for medical monitoring because it would be “consistent with existing New York law.” Id. at *5.

The court reviewed the cases cited by the plaintiffs, including Schmidt v. Merchants Despatch Transp. Co. , 270 N.Y. 287 (1936) and Askey v. Occidental Chemical Corp., 102 A.D.2d 130 (4th Dept. 1984), each of which addresses when an injury accrues in cases involving alleged exposure to toxic substances. Id. at *6. The court found that neither Schmidt nor Askey questioned New York's long-standing physical harm requirement; rather, both cases “necessitate that the plaintiff sustain a physical injury before he or she may recover consequential damages for medical monitoring.” Id. at *6, 9.

Overall, the Caronia court held that New York's appellate courts consistently have found that medical monitoring is “an element of damages that may be recovered only after a physical injury has been proven.” Id. ( citing, e.g., Abusio v. Consolidated Edison Co. of New York, Inc. , 238 A.D.2d 454 (2d Dept. 1997) (trial court properly set aside damages award for medical monitoring where plaintiffs established exposure to toxins, but failed to establish “clinically demonstrable presence of [toxin]-induced disease” or some “physical manifestation of contamination.”); Osarczuk v. Associated Universities, Inc., 36 A.D.3d 872, 878 (2d Dept. 2007); Allen v. General Elec. Co. , 32 A.D.3d 1163, 1165-66 (4th Dept. 2006); Dangler v. Town of Whitestown, 241 A.D.2d 290 (4th Dept. 1998)).

Public Policy Considerations

The court acknowledged that even though a medical monitoring cause of action is inconsistent with leading New York tort jurisprudence, it nonetheless has the authority to create a new tort cause of action. Id. at *11. The court explained that its authority must be exercised “responsibly” and with cognizance that a new cause of action will have both “foreseeable and unforeseeable consequences, most especially the potential for vast, uncircumscribed liability.” Id. (citation omitted). The court explained: “Tort liability ' depends on balancing competing interests: the question remains who is legally bound to protect plaintiffs' right at the risk of liability ' To identify an interest deserving protection does not suffice to collect damages from anyone who causes injury to that interest ' Not every deplorable act ' is redressable in damages.” Id. (citation omitted).

The court initially acknowledged that “significant” policy reasons favor the creation of an independent medical monitoring cause of action, including “an important health interest” in providing access to medical testing for those whose exposure has increased their risk of disease, which could lead to early diagnosis and treatment. Id. at *11-12.

However, the court relied on the United States Supreme Court's decision in Metro-North Commuter R.R. Co. v. Buckley , and held that “the potential systemic effects of creating this new, full-blown tort law cause of action” outweighed the potential health interest. Id. at *12 (quoting Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 443-44 (1997) (refusing to recognize a tort claim for medical monitoring costs where the plaintiff was exposed to asbestos but was asymptomatic)). The court articulated the potential pitfalls that disfavor the new claim as follows:

1. Opening the Floodgates of Litigation. “[D]ispensing with the physical injury requirement could permit 'tens of millions' of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor's resources for those who have actually sustained damage.” Id. at *12 (citing Buckley , 521 U.S. at 442-44).

2. Inequitable Diversion of Resources. “[I]t 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.” Id. at * 12-13.

3. Burden on the Court. “[T]here is no framework concerning 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 ' The Legislature is plainly in the better position to study the impact and consequences of creating such a cause of action, including ' the burden on the courts in adjudicating such claims.” Id' at *13 (internal citations and quotations omitted).

The court reiterated that New York law permits plaintiffs “who have in fact sustained physical injury” to obtain the remedy of medical monitoring as consequential damages, “so long as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of action.” Id. at *14.

In his dissenting opinion, Chief Judge Jonathan Lippman argued that medical monitoring claims should be allowed to stand on their own: “Rarely are we presented with a case more worthy of the age-old maxim that equity will not suffer a wrong without a remedy. 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.” Caronia, 2013 N.Y. Slip Op. 08372 at *1 (Lippman, Chief Judge, dissenting) (Dec. 17, 2013). Chief Judge Lippman explained that technological advancements that make it possible to detect cancers early enough to raise the rate of survival significantly necessitate a medical monitoring cause of action that will both encourage people to seek out treatment, and provide them with the adequate resources to take advantage of that treatment. Further, Chief Judge Lippman argued that ultimately, manufacturing defendants will save money, because “the cost of monitoring and treatment upon early detection pales in comparison to the expenses of treatment post-diagnosis ' ” Id. at *5. He also found that in toxic exposure cases where the long latency period “erects obstacles to establishing the causal connection between the tortious conduct and the onset of plaintiffs' disease,” the threat of facing independent medical monitoring claims may serve as a strong deterrent to manufacturers. Id.

Conclusion

For the moment, the Caronia court's decision has allayed product manufacturers' fears that New York will dispense with the physical injury requirement in a tort action and permit millions of allegedly “exposed” but disease-free and asymptomatic plaintiffs to pursue independent claims for medical monitoring. However, the court clearly beckoned the state's legislature to evaluate the issue and undertake a study regarding the costs of implementation and adjudication of such claims. At this time, there is no related legislation currently pending in New York.

There are several states that have no binding precedent on whether medical monitoring ought to be recognized as an independent cause of action. Going forward, courts in those jurisdictions will be asked to consider the well-reasoned decision in Caronia.

Diane Fleming Averell and Pamela R. Kaplan are members of Porzio, Bromberg and Newman, P.C.'s litigation group.

Editor's Note: When a patient takes a medication that does not at first appear to harm him but that could cause later-developing consequences (think Fen-Phen, for example), or when a medical error is made that causes no immediately measurable harm but that could lead to future injury (think overexposure to radiation), is a medical monitoring remedy available? The following article discusses one state high court's recent analysis of the issue.

Courts typically treat medical monitoring as a potential remedy for a traditional tort claim. In such cases, plaintiffs allege exposure to toxic substances as a result of a defendant's tortious conduct; yet at the time the action is commenced, plaintiffs are asymptomatic and allege no physical injuries. Their alleged “injury” is a presumed increased risk of developing a disease, along with the financial burden associated with periodic medical monitoring.

Medical Monitoring As an Independent Cause of Action

Despite the absence of a present physical injury, courts have been willing to award medical monitoring expenses as part of consequential damages where plaintiffs sustain their burden of proof under a traditional theory of liability, such as strict liability or negligence.

But where plaintiffs cannot sustain their prima facie case in tort, can they proceed on an independent cause of action for medical monitoring?

The answer is “yes” in Massachusetts, West Virginia, Pennsylvania, and Arizona. The appellate courts in each of these states have recognized an independent cause of action for medical monitoring. See Donovan v. Philip Morris USA, Inc. , 455 Mass. 215, 225-227 (2009); Bower v. Westinghouse Electric Corp. , 206 W.Va. 133, 140-42 (1999); Redland Soccer Club, Inc. v. Dept. of the Army and Dept. of Defense of the U.S. , 548 Pa. 178, 195-96 (1997); Burns v. Jaquays Mining Corp ., 156 Ariz. 375, 380 (Ariz. Ct. App. 1988).

The answer is “not any longer” in Louisiana, where the state's highest court recognized an independent cause of action for medical monitoring ' only to have the state legislature amend its civil code to eliminate it as a compensable item of damage absent a manifest injury or damage. Compare Bourgeois v. A.P. Green Industries, Inc. , 716 So. 2d 355 (1998), with La. Civ. Code Ann. art. 2315.

New York State's highest court recently tackled this question in Caronia v. Philip Morris USA, Inc. , 2013 N.Y. Slip Op. 08372 at *3 (Dec. 17, 2013), and answered with a resounding “no.”

New York Court Decides

In Caronia , the New York Court of Appeals addressed this issue in the context of a putative class action against cigarette manufacturer Phillip Morris USA, Inc. The plaintiffs were current or former smokers who had not been diagnosed with lung cancer and were asymptomatic. They asserted that they were at an increased risk for developing lung cancer and demanded that Phillip Morris establish and fund a court-supervised medical monitoring program that would promote early diagnosis and treatment of cancer. The plaintiffs sued under the theories of negligence, strict liability, and breach of warranty, and the district court ultimately dismissed these claims as untimely. The district court further dismissed the medical monitoring claim on the grounds 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.” Caronia v. Philip Morris USA, Inc. , 715 F.3d 417, 420 (2d. Cir. 2013).

The plaintiffs appealed to the Second United States Circuit Court of Appeals. Id. The Second Circuit affirmed the district court's dismissal of the negligence, strict liability, and breach of warranty claims. Id.

The Second Circuit turned to the plaintiffs' remaining claim for medical monitoring and evaluated whether it could proceed as an independent cause of action under New York law. The court conducted a comprehensive survey of relevant case law from New York State and federal courts, as well as in the highest courts in other states. Id. at 434-446. However, the court found that none of the New York courts had directly addressed the question of whether the state recognizes an independent cause of action for medical monitoring. Id. at 449. The court further observed: “[W]here the plaintiffs have alleged tortious exposure to toxic substances but have not alleged that they suffered physical injury, the New York intermediate appellate courts have ruled that the cost of medical monitoring may be awarded as an item of consequential damages, most of the federal district courts sitting in New York have opined that New York would recognize an independent claim for medical monitoring, and the highest courts of other states have divided as to whether or not the plaintiff may maintain an independent medical monitoring cause of action.” Id. at 449.

The Second Circuit thus concluded that New York's highest court was better suited to resolve this issue. It certified the following questions to the New York Court of Appeals:

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?

Caronia v. Philip Morris USA, Inc. , 2013 N.Y. Slip Op. 08372 at *3 (Dec. 17, 2013).

The New York Court of Appeals accepted certification of these questions on May 30, 2013, and issued its opinion on Dec. 17, 2013.

The court refused to recognize an independent equitable medical monitoring cause of action under New York law where the plaintiff has suffered no physical injury. The court articulated two bases for its decision. First, allowing such a claim would constitute a significant deviation from New York tort jurisprudence. Second, policy reasons militate against a judicially created cause of action for medical monitoring.

Analysis of New York Tort Jurisprudence

The court explained, “[t]he requirement that a plaintiff sustain a physical harm before being able to recover in tort is a fundamental principle of our state's tort system.” Id . at *4 (citations omitted). This requirement defines the class of persons who have standing to bring a claim; provides a basis for the fact-finder to determine whether a litigant actually possesses a claim; and protects courts from being jammed with “frivolous and unfounded claims.” Id. Accordingly, the court reiterated that New York tort law does not impose liability against a defendant for “a threat of future harm,” nor does New York currently recognize an independent cause of action for medical monitoring. Id.

The court then dismantled the plaintiffs' argument that the court should create a new tort for medical monitoring because it would be “consistent with existing New York law.” Id. at *5.

The court reviewed the cases cited by the plaintiffs, including Schmidt v. Merchants Despatch Transp. Co. , 270 N.Y. 287 (1936) and Askey v. Occidental Chemical Corp. , 102 A.D.2d 130 (4th Dept. 1984), each of which addresses when an injury accrues in cases involving alleged exposure to toxic substances. Id. at *6. The court found that neither Schmidt nor Askey questioned New York's long-standing physical harm requirement; rather, both cases “necessitate that the plaintiff sustain a physical injury before he or she may recover consequential damages for medical monitoring.” Id. at *6, 9.

Overall, the Caronia court held that New York's appellate courts consistently have found that medical monitoring is “an element of damages that may be recovered only after a physical injury has been proven.” Id . ( citing, e.g., Abusio v. Consolidated Edison Co. of New York, Inc. , 238 A.D.2d 454 (2d Dept. 1997) (trial court properly set aside damages award for medical monitoring where plaintiffs established exposure to toxins, but failed to establish “clinically demonstrable presence of [toxin]-induced disease” or some “physical manifestation of contamination.”); Osarczuk v. Associated Universities, Inc. , 36 A.D.3d 872, 878 (2d Dept. 2007); Allen v. General Elec. Co. , 32 A.D.3d 1163, 1165-66 (4th Dept. 2006); Dangler v. Town of Whitestown, 241 A.D.2d 290 (4th Dept. 1998)).

Public Policy Considerations

The court acknowledged that even though a medical monitoring cause of action is inconsistent with leading New York tort jurisprudence, it nonetheless has the authority to create a new tort cause of action. Id. at *11. The court explained that its authority must be exercised “responsibly” and with cognizance that a new cause of action will have both “foreseeable and unforeseeable consequences, most especially the potential for vast, uncircumscribed liability.” Id. (citation omitted). The court explained: “Tort liability ' depends on balancing competing interests: the question remains who is legally bound to protect plaintiffs' right at the risk of liability ' To identify an interest deserving protection does not suffice to collect damages from anyone who causes injury to that interest ' Not every deplorable act ' is redressable in damages.” Id. (citation omitted).

The court initially acknowledged that “significant” policy reasons favor the creation of an independent medical monitoring cause of action, including “an important health interest” in providing access to medical testing for those whose exposure has increased their risk of disease, which could lead to early diagnosis and treatment. Id. at *11-12.

However, the court relied on the United States Supreme Court's decision in Metro-North Commuter R.R. Co. v. Buckley , and held that “the potential systemic effects of creating this new, full-blown tort law cause of action” outweighed the potential health interest. Id . at *12 (quoting Metro-North Commuter R.R. Co. v. Buckley , 521 U.S. 424, 443-44 (1997) (refusing to recognize a tort claim for medical monitoring costs where the plaintiff was exposed to asbestos but was asymptomatic)). The court articulated the potential pitfalls that disfavor the new claim as follows:

1. Opening the Floodgates of Litigation. “[D]ispensing with the physical injury requirement could permit 'tens of millions' of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor's resources for those who have actually sustained damage.” Id. at *12 (citing Buckley , 521 U.S. at 442-44).

2. Inequitable Diversion of Resources. “[I]t 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.” Id. at * 12-13.

3. Burden on the Court. “[T]here is no framework concerning 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 ' The Legislature is plainly in the better position to study the impact and consequences of creating such a cause of action, including ' the burden on the courts in adjudicating such claims.” Id' at *13 (internal citations and quotations omitted).

The court reiterated that New York law permits plaintiffs “who have in fact sustained physical injury” to obtain the remedy of medical monitoring as consequential damages, “so long as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of action.” Id. at *14.

In his dissenting opinion, Chief Judge Jonathan Lippman argued that medical monitoring claims should be allowed to stand on their own: “Rarely are we presented with a case more worthy of the age-old maxim that equity will not suffer a wrong without a remedy. 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.” Caronia, 2013 N.Y. Slip Op. 08372 at *1 (Lippman, Chief Judge, dissenting) (Dec. 17, 2013). Chief Judge Lippman explained that technological advancements that make it possible to detect cancers early enough to raise the rate of survival significantly necessitate a medical monitoring cause of action that will both encourage people to seek out treatment, and provide them with the adequate resources to take advantage of that treatment. Further, Chief Judge Lippman argued that ultimately, manufacturing defendants will save money, because “the cost of monitoring and treatment upon early detection pales in comparison to the expenses of treatment post-diagnosis ' ” Id. at *5. He also found that in toxic exposure cases where the long latency period “erects obstacles to establishing the causal connection between the tortious conduct and the onset of plaintiffs' disease,” the threat of facing independent medical monitoring claims may serve as a strong deterrent to manufacturers. Id.

Conclusion

For the moment, the Caronia court's decision has allayed product manufacturers' fears that New York will dispense with the physical injury requirement in a tort action and permit millions of allegedly “exposed” but disease-free and asymptomatic plaintiffs to pursue independent claims for medical monitoring. However, the court clearly beckoned the state's legislature to evaluate the issue and undertake a study regarding the costs of implementation and adjudication of such claims. At this time, there is no related legislation currently pending in New York.

There are several states that have no binding precedent on whether medical monitoring ought to be recognized as an independent cause of action. Going forward, courts in those jurisdictions will be asked to consider the well-reasoned decision in Caronia.

Diane Fleming Averell and Pamela R. Kaplan are members of Porzio, Bromberg and Newman, P.C.'s litigation group.