Caronia v. Philip Morris USA, Inc. , 22 N.Y.3d 439 ( 2013 )

OPINION OF THE COURT

Pigott, J.

The United States Court of Appeals for the Second Circuit has asked us to determine whether this State recognizes an independent equitable cause of action for medical monitoring and, if so, what the elements, appropriate statute of limitations and accrual date are for that particular cause of action.

I

Plaintiffs, who are all over the age of 50, are current and/or former smokers of Marlboro cigarettes with histories of 20 pack-years¹ or more. None of the plaintiffs has been diagnosed with lung cancer, nor are they currently “under investigation by a physician for suspected lung cancer.” Plaintiffs commenced this putative class action against Philip Morris USA, Inc. in federal court asserting claims sounding in negligence, strict liability and breach of the implied warranty of merchantability. Plaintiffs requested equitable relief, namely, the creation of a court-supervised program, at Philip Morris’s expense, that would provide them with Low Dose CT Scanning of the chest (LDCT), which plaintiffs claim is a type of medical monitoring that assists in the early detection of lung cancer. At the completion of discovery, the District Court granted Philip Morris summary judgment with regard to plaintiffs’ negligence and strict liability claims, but ordered further briefing concerning the breach of implied warranty claim and on the issue whether our Court would recognize an independent cause of action for medical monitoring (see Caronia v Philip Morris USA, Inc., 2010 WL 520558, *1, 2010 US Dist LEXIS 12168, *2-3 [ED NY Feb. 11, 2010]).

In the interim, plaintiffs served a fourth amended complaint asserting, in addition to their prior causes of action, a separate, equitable cause of action for medical monitoring, seeking the establishment of the medical monitoring program. The District Court dismissed the breach of implied warranty and medical monitoring claims, holding that although this Court would likely recognize the latter claim, plaintiffs “failed to plead that Philip Morris’s allegedly tortious conduct is the reason that they must now secure a monitoring program that includes LDCT scans” (Caronia v Philip Morris USA, Inc., 2011 WL 338425, *3, 2011 US Dist LEXIS 12610, *8-9 [ED NY Jan. 13, 2011]). The United States Court of Appeals for the Second Circuit affirmed the dismissal of plaintiffs’ negligence, strict liability and breach of implied warranty claims, but, acknowledging that this Court has not considered whether an independent cause of action for medical monitoring exists in New York, certified the following questions of law:

“(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?” (715 F3d 417, 450 [2013]).

We answer the first certified question in the negative, and decline to answer the second certified question as academic.

II

Plaintiffs do not claim to have suffered physical injury or damage to property. They assert, rather, that they are at an “increased risk” for developing lung cancer and would benefit from LDCT monitoring, which they claim would allow them to discover the existence of cancers at an earlier stage, leading to earlier treatment.

A threat of future harm is insufficient to impose liability against a defendant in a tort context (see Prosser & Keeton, Torts § 30 at 165 [5th ed 1984]). 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 (see Kimbar v Estis, 1 NY2d 399, 403 [1956] [no action will lie in negligence absent a “resultant injury to plaintiff”]; see also Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107 [1983] [plaintiff must sustain injury or damage before being able to recover under a strict products liability theory]). 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 factfinder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims.

Having alleged no physical injury or damage to property in their complaint, plaintiffs’ only potential pathway to relief is for this Court to recognize a new tort, namely, an equitable medical monitoring cause of action. Plaintiffs claim that such a cause of action is “consistent with existing New York law,” pointing to Askey v Occidental Chem. Corp. (102 AD2d 130 [4th Dept 1984]), a case involving a motion by plaintiffs seeking class certification to bring toxic exposure claims against a landfill owner, and, in particular, seeking recovery of future medical monitoring costs (id. at 131). Certain of the Askey plaintiffs alleged actual injury from the exposure, while others, like plaintiffs here, claimed only an increased risk of developing cancer or other diseases. The latter plaintiffs sought the imposition of a constructive trust on the owner’s property to cover medical monitoring costs (id. at 132-133). Addressing the plaintiffs who had alleged no injury, the Appellate Division stated that “damages resulting from the enhanced risk of cancer and the threat of future harm not yet realized are not compensable in a tort action . . . , [but that] there is a basis in law to sustain a claim for medical monitoring as an element of consequential damage” (id. at 135 [emphasis supplied]). The Askey court derived its rationale from our holding in Schmidt v Merchants Despatch Transp. Co. (270 NY 287 [1936], rearg denied 271 NY 531 [1936]), which involved a worker who sued his employer for exposure to a toxic dust that resulted in his contracting an incurable lung disease (id. at 297).

The issue in Schmidt, however, involved when the cause of action from the toxic exposure accrued. This Court concluded that the injury to the plaintiff occurred “when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust,” making the defendant responsible for any damages that flowed from that injury (id. at 301). Even in Schmidt, however, this Court required some injury or damage to the plaintiff before he could recover. Having concluded that the injury or damage occurred at the time of “invasion” of the plaintiffs “personal or property rights,” we addressed the issue of damages, holding that

“[consequential damages may flow later from an injury too slight to be noticed at the time it is inflicted. No new cause of action accrues when such consequential damages arise. So far as consequential damages may be reasonably anticipated, they may be included in a recovery for the original injury, though even at the time of the trial they may not yet exist” (id. at 300-301 [emphasis supplied]).

The Askey court, relying on Schmidt, concluded that the plaintiffs exposed to the landfill toxins had “an increased risk of invisible genetic damage and a present cause of action for their injury,” and could recover “ ‘reasonably anticipated’ consequential damages,” including medical monitoring, so long as the plaintiffs could “establish with a reasonable degree of medical certainty that such expenditures [were] ‘reasonably anticipated’ to be incurred by reason of their exposure” (Askey, 102 AD2d at 137). The accrual rule set forth in Schmidt, and referenced in Askey, was replaced by CPLR 214-c, which requires a plaintiff to initiate a cause of action for personal injury damages caused by the 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.”

Neither Schmidt nor Askey questioned this State’s long-held physical harm requirement; rather, they merely accepted, for accrual purposes, that the injury accrued at the time of exposure. In light of section 214-c’s enactment in 1986 (well after Askey and Schmidt), the Askey court’s holding that persons who are exposed to toxins may recover all “ ‘reasonably anticipated’ consequential damages,” including the cost of future medical monitoring to “permit the early detection and treatment of maladies” (Askey, 102 AD2d 137), must be viewed in its proper context. Given that the injuries in Askey and Schmidt were deemed (for accrual purposes) to have been sustained at the time of exposure, it is understandable why the Courts in those cases would have concluded that any and all damages flowing from those “injuries,” including damages for medical monitoring, would be potentially recoverable as consequential damages.

The Appellate Divisions have consistently found 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. For instance, in Abusio v Consolidated Edison Co. of N.Y. (238 AD2d 454 [2d Dept 1997], Iv denied 90 NY2d 806 [1997]), where the plaintiffs brought a negligence cause of action arising out of exposure to toxins, the Court concluded that the trial court properly set aside the damage awards for emotional distress and medical monitoring, holding that although plaintiffs established that they were exposed to toxins, they failed to establish that they had a “rational basis” for their fear of contracting the disease, i.e., they failed to establish a “clinically demonstrable presence of [toxins] in the plaintiffs body, or some indication of [toxin]-induced disease, i.e., some physical manifestation of [toxin] contamination” (id. at 454-455).

Courts have followed the test enunciated in Abusio in a number of cases where medical monitoring was sought as an element of damages (see Osarczuk v Associated Univs., Inc., 36 AD3d 872, 878 [2d Dept 2007] [remitting case to trial court for consideration of the plaintiffs’ motion as it related to causes of action seeking damages and equitable relief for personal injuries and property damage]; Allen v General Elec. Co., 32 AD3d 1163, 1165-1166 [4th Dept 2006] [in order to obtain medical monitoring damages, plaintiff must establish “clinically demonstrable presence” of toxins in the body or evidence of toxin-induced disease]; Dangler v Town of Whitestown, 241 AD2d 290 [4th Dept 1998] [medical monitoring considered as damages]). In each of these cases, the plaintiffs alleged either personal injury or property damage or both.²

Federal courts sitting in New York have surmised, in reliance on Askey and Abusio, that this Court would recognize an independent equitable medical monitoring cause of action where a plaintiffs only “injury” is the “financial burden associated with periodic medical monitoring” (Abbatiello v Monsanto Co., 522 F Supp 2d 524, 538-539 [SD NY 2007]), or where the plaintiff alleges absolutely no injury at all (see Gibbs v E.I. DuPont De Nemours & Co., Inc., 876 F Supp 475, 478-479 [WD NY 1995]; Beckley v United States, 1995 WL 590658, *4, 1995 US Dist LEXIS 14599, *11 [SD NY 1995]; but see In re World Trade Ctr. Disaster Site Litig., 2006 WL 3627760, *3, 2006 US Dist LEXIS 93639, *9 [SD NY 2006] [holding that medical monitoring damages may be recovered “if causes of action are otherwise proved and if the remedies are held to be appropriate and in accordance with the law” but that medical monitoring does not constitute an independent cause of action]). Askey and Abusio, however, necessitate that the plaintiff sustain a physical injury before he or she may recover consequential damages for medical monitoring.

The highest courts in our sister states are divided on whether an independent cause of action for medical monitoring should lie absent any allegation of present physical injury or damage to property. Some have refused to recognize such equitable claims for the imposition of a court-supervised medical monitoring program absent such injury or harm (see Henry v Dow Chem. Co., 473 Mich 63, 75-76, 701 NW2d 684, 690 [2005] [reaffirming “the principle that a plaintiff must demonstrate a present physical injury to person or property in addition to economic losses that result from that injury in order to recover under a negligence theory” (emphasis omitted)]; see also Lowe v Philip Morris USA, Inc., 344 Or 403, 414-415, 183 P3d 181, 187 [2008] [“negligent conduct that results only in a significantly increased risk of future injury that requires medical monitoring does not give rise to a claim for negligence”]). Others, however, have dispensed with the physical injury requirement and have recognized an independent medical monitoring cause of action (see Donovan v Philip Morris USA, Inc., 455 Mass 215, 225-227, 914 NE2d 891, 901-903 [2009] [concluding that the cause of action is in tort, not equity]; Bower v Westinghouse Elec. Corp., 206 W Va 133, 140-142, 522 SE2d 424, 431-433 [1999] [holding that a plaintiff who does not allege a present physical injury may recover future medical monitoring costs]; Redland Soccer Club, Inc. v Department of the Army & Dept. of Defense of the U.S., 548 Pa 178, 195-196, 696 A2d 137, 145-146 [1997] [stating that the injury in a medical monitoring claim is an economic one]; Burns v Jaquays Min. Corp., 156 Ariz 375, 380, 752 P2d 28, 33 [Ct App 1988]).

Plaintiffs ask us to follow the second line of cases—Donovan in particular—and recognize a cause of action for medical monitoring because Philip Morris’s “wrong,” i.e., its alleged failure to design a safer cigarette that delivers lower amounts of tar, should not be without a remedy. Although “the desire to provide an avenue to redress wrongs is ... an important consideration underlying our tort jurisprudence, the recognition that there has been an interference with an interest worthy of protection has been the beginning, not the end, of our analysis” (Ortega v City of New York, 9 NY3d 69, 78 [2007]). This Court undoubtedly has the authority to recognize a new tort cause of action, but that authority must be exercised responsibly, keeping in mind that a new cause of action will have both “foreseeable and unforeseeable consequences, most especially the potential for vast, uncircumscribed liability” (Madden v Creative Servs., 84 NY2d 738, 746 [1995] [citations omitted]).

“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. at 746 [citation, internal quotation marks and brackets omitted]).

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 public 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 (Bower, 206 W Va at 140, 522 SE2d at 431, quoting Potter v Firestone Tire & Rubber Co., 6 Cal 4th 965, 1008, 863 P2d 795, 824 [1993]). However, “the potential systemic effects of creating a new, full-blown, tort law cause of action” cannot be ignored (Metro-North Commuter R. Co. v Buckley, 521 US 424, 443-444 [1997] [refusing to recognize a tort claim for medical monitoring costs where the plaintiff was exposed to asbestos but had not manifested symptoms of a disease]). 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 (id. at 442-444).³ 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” (Henry, 473 Mich at 91-92, 701 NW2d at 698-699). 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 (see Schwartz, Medical Monitoring: The Right Way and the Wrong Way, 70 Mo L Rev at 382-385).⁴

III

We conclude that the policy reasons set forth above 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.

1 . A “pack-year” is the equivalent of smoking one pack of cigarettes a day for a year.

2 . [1] To the extent that any of these, or other, cases can be read as recognizing an independent cause of action for medical monitoring absent allegation of any physical injury or property damage, they should not be followed.

3 . Contrary to the dissent’s contention (dissenting op at 456), the concern that a medical monitoring cause of action would promote frivolous claims is not “unfounded.” For instance, in West Virginia, shortly after the state’s highest court decided Bower, a class action lawsuit was filed against cigarette manufacturers on behalf of 250,000 West Virginia smokers seeking damages for medical monitoring notwithstanding the fact that they had not been diagnosed with any smoking-related disease (see Victor E. Schwartz et al., Medical Monitoring: The Right Way and the Wrong Way, 70 Mo L Rev 349, 382 n 190 [2005]; see also In re West Virginia Rezulin Litig., 214 W Va 52, 73, 585 SE2d 52, 73 [2003] [relying on Bower in holding that the lower court erred in denying class certification of 5,000 plaintiffs seeking medical monitoring damages]).

4 . The state legislature in Louisiana, one year after its highest court recognized an independent cause of action for medical monitoring in Bourgeois v A.E Green Indus., Inc. (716 So 2d 355 [La 1998]) which did not require the plaintiff to establish any physical harm, amended its civil code to eliminate medical monitoring as a compensable item of damage absent manifest physical injury or damage (see La Civ Code Ann art 2315).