New York Court of Appeals Refuses to Create New Cause of Action for “Medical Monitoring”

In Caronia v. Philip Morris USA, Inc., decided December 17, 2013, the New York Court of Appeals addressed the following question:

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?

The court (in an opinion authored by Judge Piggot) answered this question in the negative, and declined to answer additional questions relating to the elements and statute of limitations for such a cause of action, as academic.

Here, the plaintiffs (current and/or former frequent smokers of Marlboro cigarettes) alleged no physical injury or property damage. Rather, they requested equitable relief in the form of a “court-supervised program, at Philip Morris’s expense, that would provide them with Low Dose CT Scanning of the chest (LDCT)”, allegedly a “type of medical monitoring that assists in the early detection of lung cancer.”

In declining to create a new cause of action, the court explained:

A threat of future harm is insufficient to impose liability against a defendant in a tort context. 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. 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 fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims.

Ultimately, the court held that policy reasons militated against creating a new cause of action for “medical monitoring”:

We do not deny that there are significant policy reasons that favor recognizing an independent medical monitoring cause of action. There is certainly “an important health interest in fostering access to medical testing” for those whose exposure has resulted in an increased risk of disease, and such testing could lead to early detection and treatment, not only mitigating future illness but also reducing the cost to the tortfeasor. However, the potential systemic effects of creating a new, full-blown tort law cause of action cannot be ignored. For instance, dispensing 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. Moreover, 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.

From a practical standpoint, it cannot be overlooked that there 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 costs of implementation and the burden on the courts in adjudicating such claims.

It thus concluded that various policy reasons

militate against a judicially-created independent cause of action for medical monitoring. Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence. That does not prevent plaintiffs who have in fact sustained physical injury from obtaining the remedy of medical monitoring. Such a remedy has been permitted in this State’s courts 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. Accordingly, we answer the first certified question in the negative, and we decline to answer the second certified question as academic.

Chief Judge Lippman dissented, arguing that “overall fairness demands that New York recognize an independent equitable medical monitoring cause of action for smokers who can prove that their enhanced risk of cancer was caused by the wrongful conduct of tobacco companies.”

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