Caronia v. Philip Morris USA, Inc.

(dissenting). 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. Because I believe 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 *453wrongful conduct of tobacco companies, I dissent and would answer the first certified question in the affirmative.1

Relief in the form of medical monitoring has developed in response to “a world in which people regularly encounter environmental toxins, the effects of which are largely unknown” (Recent Cases, Supreme Judicial Court of Massachusetts Recognizes Cause of Action for Medical Monitoring of Tobacco Users, 123 Harv L Rev 1771, 1771 [2010]), and the “growing recognition that exposure to toxic substances . . . may cause substantial injury which should be compensable even if the full effects are not immediately apparent” (Donovan v Philip Morris USA, Inc., 455 Mass 215, 225, 914 NE2d 891, 901 [2009], citing Hansen v Mountain Fuel Supply Co., 858 P2d 970, 977 [Utah 1993]). It is undisputed in the scientific community and conceded by defendant Philip Morris—albeit only since 1999—that cigarettes are a lethal and addictive product which contain cancer-causing carcinogens. Lung cancer is the leading cause of cancer death in the United States, and smoking is responsible for between 80 and 90 percent of lung cancer deaths. Moreover, the high mortality rate in lung cancer patients is largely due to the latent nature of the disease, whose symptoms typically manifest only after the cancer has metastasized, at which point survival rates are in the single digits. However, advances in imaging technology have resulted in the development of Low-Dose Computerized Tomography scanning of the chest (LDCT), a monitoring method widely acknowledged in the medical community as allowing for the detection of lung cancer tumors at a much earlier stage than previously possible. LDCT can detect cancer when it is still localized, at a point when surgery and/or chemotherapy have vastly higher success rates. The significance of this technological advancement cannot be overstated. It is a critical development in our society’s medical knowledge that has the potential of transforming lung cancer into a survivable disease.

Furthermore, plaintiffs have submitted expert evidence attesting that Marlboro cigarettes expose smokers to excessive and unreasonably dangerous levels of carcinogens. These experts also contend that, since the time Marlboro cigarettes were first sold, it was technologically feasible for Philip Morris to design a cigarette which delivered a dramatically lower *454amount of tar but were equally “pleasurable,” reducing exposure to carcinogenic agents by 100 fold without reducing the product’s “utility.”2

We are thus presented with a defendant who has allegedly engaged in long-term and continuing misconduct and plaintiffs who, as a proximate result of that wrongdoing, have allegedly reached a risk level threshold for lung cancer at which medical experts believe LDCT screening is “reasonable and necessary” to facilitate early detection so as to avert terrible suffering and near-certain death. Legal recovery eludes these plaintiffs, however, because they do not manifest the kind of physical, symptomatic injury traditionally required for a valid tort claim. Furthermore, plaintiffs are unlikely to manifest symptoms of lung cancer unless and until the disease is at an advanced stage, at which point mortality rates are high and the only treatments available would be aimed at extending their lives, not saving them.

It is difficult to envision a scenario more worthy of the exercise of this Court’s equitable powers. Indeed, it is contrary to the spirit of New York law to deny these plaintiffs an opportunity to seek relief in equity where the policy justifications for the proposed medical monitoring cause of action are so compelling. First, monitoring claims promote the “important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease, particularly in light of the value of early diagnosis and treatment for many cancer patients” (Potter v Firestone Tire & Rubber Co., 6 Cal 4th 965, 1008, 863 P2d 795, 824 [1993]; accord Meyer ex rel. Coplin v Fluor Corp., 220 SW3d 712, 718 [Mo 2007]; Bower v Westinghouse Elec. Corp., 206 W Va 133, 140, 522 SE2d 424, 431 [1999]; Redland Soccer Club, Inc. v Department of the Army & Dept. of Defense of the U.S., 548 Pa 178, 194, 696 A2d 137, 145 [1997]; Ayers v Township of Jackson, 106 NJ 557, 603, 525 A2d 287, 311 [1987]). Second, implementing a medical monitoring program has *455economic benefits not only for plaintiffs,3 but also for tobacco companies, since the cost of monitoring and treatment upon early detection pales in comparison to the expenses of treatment post-diagnosis, not to mention those incurred by defendants in wrongful death suits (see Ayers, 106 NJ at 604, 525 A2d at 312 [“The availability of a substantial remedy before the consequences of the plaintiffs’ exposure are manifest may also have the beneficial effect of preventing or mitigating serious future illnesses and thus reduce the overall costs to the responsible parties”]; accord Burns v Jaquays Min. Corp., 156 Ariz 375, 380, 752 P2d 28, 33 [1987]). Third, requiring defendant to cover the costs of reasonably necessary medical monitoring would serve an important deterrence function. As evidenced by the District Court’s dismissal of plaintiffs’ negligence, strict liability and breach of warranty claims, the burdens of proof for injury, causation and timeliness in tort make the threat of legal action ineffective at deterring the kind of misconduct alleged here. This is especially true since, by the time lung cancer symptoms manifest, the long period of latency erects obstacles to establishing the causal connection between the tortious conduct and the onset of plaintiffs’ disease (see Ayers, 106 NJ at 604, 525 A2d at 312; Arvin Maskin et al., Medical Monitoring: A Viable Remedy for Deserving Plaintiffs or Tort Law’s Most Expensive Consolation Prize?, 27 Wm Mitchell L Rev 521, 526-527 [2000] [“the longer the latency period, the more likely that plaintiffs will have exercised other lifestyle or occupational choices that arguably could have contributed to their illness, rendering a verdict against the defendants less likely”]). Finally, it is just to shift the cost of medical monitoring onto the tortfeasor because “it would be inequitable for an individual wrongfully exposed to dangerous toxins, but unable to prove that cancer or disease is likely, to have to pay the expense of medical monitoring when such intervention is clearly reasonable and necessary” (Potter, 6 Cal 4th at 1008, 863 P2d at 824 [citations omitted]).

In sum, where a defendant’s alleged misconduct causes severe harm, and the opportunity exists to save lives and alleviate *456suffering, countervailing public policy considerations must be extraordinarily compelling to justify such an “absolute failure of justice” (Strusburgh v Mayor of City of N.Y., 87 NY 452, 456 [1882]). The majority’s justifications fall short of the mark.

In refusing to recognize an independent equitable action for medical monitoring, the majority raises the specter of a flood of frivolous claims brought by asymptomatic plaintiffs, leading to the “inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure” (majority op at 451). This fear is unfounded.4 As an initial matter, the surest way to safeguard against frivolous claims and limitless liability is to carefully tailor the elements of a cause of action, which is by no means an insurmountable challenge here. The first step is to prescribe an alternatively defined injury requiring definite and identifiable proof. Plaintiffs urge us to define the injury as the enhanced risk of cancer recognized by medical experts according to specifically defined thresholds of age (at least 50 years old) and exposure to carcinogens (at least 20 pack-years). Such an approach neither opens the litigation floodgates nor unduly burdens the courts. Indeed, linking the injury element to standards recognized in the scientific community is a familiar judicial exercise in the context of claims related to latent injury due to exposure to toxic substances. For example, in Giordano v Market Am,., Inc. (15 NY3d 590, 601 [2010]), this Court was called upon to interpret CPLR 214-c’s requirement that a plaintiff “ ‘allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined’ before the expiration of the otherwise-*457applicable limitation period” (id. at 600). This Court determined that “the test is one of general acceptance of that [causal] relationship in the relevant technical, scientific or medical community” (id. at 601). We rejected the argument that courts are ill-equipped to determine whether the element of causation had been proven based on such expert testimony since “[the] test is familiar to New York lawyers and judges. Our courts follow Frye v United States (293 F 1013 [DC Cir 1923]) in making ‘general acceptance’ the test for admitting expert testimony about scientific principles or discoveries” (id., citing People v LeGrand, 8 NY3d 449, 457 [2007] and People v Wesley, 83 NY2d 417, 422 [1994]). Just as courts are capable of applying the “general acceptance” standard to discern whether a plaintiff has satisfied the causality requirement under CPLR 214-c, so too are we equipped to apply analogous standards based on contemporary scientific principles to “determine whether a litigant actually possesses a claim” (majority op at 446) in equity for medical monitoring (see Donovan, 455 Mass at 226-227, 914 NE2d at 902 [enumerating elements of a cause of action for medical monitoring and noting that “(p)roof of these elements usually will require competent expert testimony”]; In re Paoli R.R. Yard PCB Litig., 916 F2d 829, 852 [3d Cir 1990], cert denied 499 US 961 [1991]; Ayers, 106 NJ at 606, 525 A2d at 312; Hansen, 858 P2d at 979-980).

Beyond circumscribing the alternative injury requirement, the claim’s scope would be further curtailed by the other enumerated elements. For instance, plaintiffs would still have the burden of proving defendant’s tortious conduct, however defined (see Donovan, 455 Mass at 226, 914 NE2d at 902 [negligence]; Hansen, 858 P2d at 979 [same]; Potter, 6 Cal 4th at 974, 863 P2d at 800 [same]; Redland, 548 Pa at 195-196, 696 A2d at 145-146 [same]; Bower, 206 W Va at 139, 140, 522 SE2d at 430, 431 [“tortious conduct”]; Abbatiello v Monsanto Co., 522 F Supp 2d 524, 539 [SD NY 2007] [predicting that this Court would recognize an independent action for medical monitoring and would allow plaintiffs to prove wrongdoing sounding in negligence, strict liability, abnormally dangerous activities, nuisance, or trespass]). Furthermore, despite the uncontroverted medical evidence that nicotine’s addictive qualities, combined with the additives in cigarettes which enhance those propensities, put the addictive nature of cigarettes on par with cocaine and heroin (see e.g. Evans v Lorillard Tobacco Co., 465 Mass 411, 420, 990 NE2d 997, 1009 [2013]), smoking cigarettes *458undeniably involves a conscious (not to mention legal) act of exposure to carcinogens. Heavy smokers are thus different from individuals whose exposure to toxic substances is wholly inadvertent. In this sense, smokers’ claims for medical monitoring could be further restricted by the availability of tort defenses such as contributory negligence (see Donovan, 455 Mass at 226 n 11, 914 NE2d at 901 n 11; Potter, 6 Cal 4th at 974, 863 P2d at 801 [comparative fault principles may apply in smoking context]; Dangler v Town of Whitestown, 241 AD2d 290, 294 [4th Dept 1998] [a jury may be entitled to consider plaintiffs’ “voluntary exposure to carcinogens, for example, by smoking”]).

The majority’s position that the proposed cause of action threatens a deluge of frivolous claims is also undermined by the fact that plaintiffs would need to prove: (1) the existence of an efficacious method of screening for early detection which not only (2) conforms with the medical standard of care but (3) is also reasonably necessary given the enhanced risk of cancer (see e.g. Hansen, 858 P2d at 979-980). In this case, these requirements would, among other things, necessitate proof that, had Philip Morris marketed and sold “safer” cigarettes, plaintiffs would have smoked them. A recent case of this Court evidences the difficulty of supplying such proof (Adamo v Brown & Williamson Tobacco Corp., 11 NY3d 545 [2008] [plaintiffs failed to establish tobacco manufacturer’s liability in a product liability action where there was no proof that the proposed alternative design (a “safer” cigarette) was equivalent in “function” or “utility” in terms of providing smokers with equivalent satisfaction]). When properly tailored, the cause of action would set a high bar for plaintiffs to meet, dispelling concerns of any onslaught of meritless litigation.

Nor is the majority warranted in its fear that recognizing an appropriately tailored cause of action for medical monitoring for plaintiff smokers would expose defendants to boundless liability. Notably, this concern has been voiced in the toxic tort context primarily regarding the availability of lump-sum money damages, rather than injunctive relief (see e.g. Ayers, 106 NJ at 609-610, 525 A2d at 314 [upholding the jury’s lump-sum award but noting the court’s preference for relief in the form of a court-administered fund for medical monitoring]; Victor E. Schwartz et al., Medical Monitoring: The Right Way and the Wrong Way, 70 Mo L Rev 349, 369-373 [2005] [arguing that “(1)ump-sum awards are starkly at odds with the traditional scientific goal of medical monitoring and surveillance: detecting the onset of *459disease,” and noting that the lack of assurance that such damages will be spent on surveillance presents the danger of a windfall recovery]).

In particular, the majority relies on Metro-North Commuter R. Co. v Buckley (521 US 424 [1997]), where asymptomatic plaintiffs who had been exposed to asbestos sued their employer under the Federal Employers’ Liability Act (45 USC § 51 et seq.) for negligent infliction of emotional distress, seeking, inter alia, compensatory damages for future medical monitoring. In denying plaintiffs money damages, the Supreme Court pointed out that cases permitting recovery of a monitoring remedy without proof of manifest injury were based on equitable or injunctive decrees (id. at 440-441, citing Ayers, 106 NJ at 608, 525 A2d at 314; Hansen, 858 P2d at 982; Potter, 6 Cal 4th at 1010, 863 P2d at 825; Burns, 156 Ariz at 381, 752 P2d at 34). The Supreme Court’s cautions as to runaway liability thus have little bearing on the certified question before this Court, which concerns the availability of an equitable remedy in an independent equitable cause of action. Indeed, Justice Ginsburg’s dissent observed that “non-injured” claimants were at liberty to seek an equitable remedy (Metro-North, 521 US at 455-456 [Ginsburg, J., dissenting] [“(Plaintiff) may replead a claim for relief and recover for medical monitoring, but he must receive that relief in a form other than a lump sum”]).5

Finally, establishing a court-administered fund to finance a medical surveillance program is a “highly appropriate exercise of the Court’s equitable powers” (Ayers, 106 NJ at 608, 525 A2d at 608). In reaching a contrary conclusion, the majority claims that courts lack the requisite expertise to administer a program “dependent on scientific disciplines” and that “there is no framework concerning how such a medical monitoring program would be implemented and administered” (majority op at 452). In fact, valuable guidance on the administration of medical monitoring programs has been provided by the courts that have *460granted such relief. For example, almost 15 years ago a Florida appellate court outlined specific guidelines to follow in running a medical monitoring fund (see Petito v H.H. Robins Co., Inc., 750 So 2d 103, 107 [Fla Dist Ct App 1999]). In adopting the Petito framework, the Court of Appeals of Maryland recently summarized the following steps that may be appropriate for courts to follow if plaintiffs can demonstrate an entitlement to medical monitoring relief:

“(1) appoint a plan administrator; (2) with the administrator’s advice, approve an advisory panel of persons qualified and knowledgeable in the relevant medical field or fields to supervise, among other things, the persons who consume or undergo medication and treatment, and select a list of skilled and neutral examining physicians to perform the medical tests; (3) establish a time frame for those eligible to obtain the monitoring; and (4) authorize the plan administrator to pay the reasonable amounts of claims based on submitted reports and findings by the monitoring physicians” (Exxon Mobil Corp. v Albright, 433 Md 303, 388, 71 A3d 30, 81 [2013], citing Petito, 750 So 2d at 106).

These and similar guidelines provide useful roadmaps for administering a medical monitoring program.

The common law must evolve with advances in scientific understanding to fashion relief and provide redress for wrongs newly understood, particularly when such relief can prevent devastating disease and death. In equity, “there is often an element of discretion, but never a discretion that is absolute as not to bend before the blast of extraordinary circumstances” (Evangelical Lutheran Church v Sahlem, 254 NY 161, 167 [1930, Cardozo, Ch. J.]). In the face of such circumstances, the majority resolutely stands frozen in time as it denies plaintiffs the opportunity to take advantage of life-saving technology. This result is indefensible when equitable relief is well within the province of this Court.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of this Court’s *461Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, first certified question answered in the negative and second certified question not answered as academic.