Court to Smokers: Get Sick First

Maxwell Herman

Max Herman

Yesterday I was emailing with Max Herman, a student at Fordham Law School, about a potential series of guest blogs here. The issue was one he was studying, and one that the Second Circuit Court of Appeals had sent over to the New York Court of Appeals for an opinion on how New York law would handle this case of first impression.

The subject: Medical monitoring as a possible cause of action in cigarette cases. And before we had even firmed up the way to approach it as a guest blog series — Bam!  The New York Court of Appeals released the decision today.

Without further ado, I introduce Max Herman:

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So you find out that for the last 10 years you’ve been exposed to radiation, dioxin or carcinogenic smoke.  And you also find out that your exposure is due to the negligence of another.  Of course, you haven’t developed any symptoms, yet the doctors tell you your likelihood of developing cancer has been substantially increased.   You’re scared, angry and realize that for the rest of your life you’re going to need medical surveillance if you’re going to beat the disease to its potential punch.

“But who’s going to pay for that monitoring?” you wonder.  I don’t know, but if you’re in New York, I know it won’t be the guy who caused your exposure.

In a surprising (to me and several Federal District Courts) turn of events, the New York Court of Appeals released a decision today answering two questions asked by the Second Circuit:

Does New York State recognize an independent claim for medical monitoring?

And if so, what are the elements and when does the limitations period accrue?

The highest court in the state answered the former in the negative and declined to answer the latter as academic.

The questions were asked as a part of Caronia v. Phillip Morris USA.  In Caronia, a group of smokers brought suit seeking a court-administered fund for LDCT, a lung cancer monitoring system that substantially reduces lung cancer fatalities by detecting tumors earlier than other available technology.

Marlboro and Kids

The Marlboro Motto: Hook ‘em early.

Each smoker was over the age of fifty, had smoked for 20 ‘pack years’ (a pack year is a smoker’s years as a smoker multiplied by the number of packs smoked per day), but had yet to develop disease.  Thus, because they had a disproportionately high risk of developing lung cancer, they reasoned that Phillip Morris USA, which designed, produced and marketed the inherently defective products, should pay for the fund.

In the decision, written by Associate Judge Pigott, the court finds itself loath to craft a new, non-traditional tort claim without the safeguard of an injury requirement.  He explains that dispensing with the requirement would deplete both judicial and defendant resources by allowing “tens of millions” of potential plaintiffs a new avenue of recovery, potentially to the detriment of plaintiffs who actually develop disease.  In short, the judges do not have time to hear all the cases and the defendants won’t be able to pay all of the victims.

The court also recognizes its limitations, admitting to a lack of “technical expertise necessary to effectively administer a program heavily dependent on scientific principles . . . .”  Thus, the court hands the issue off to the legislature, which, the court suggests, is better suited to mulling over the impact of a medical monitoring cause of action than the judicial branch.

Based upon the policy arguments of ‘limited resources’ and ‘lack of expertise,’ the court found itself unwilling to allow the smokers in Caronia to proceed on a medical monitoring claim.

There was, however, some dissension on the Court of Appeals:

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.

Thusly, Chief Judge Lippman begins his scathing dissent, pointing out not only how worthy the plaintiffs in equity are of remedy, but also how unfortunate it is that the court failed to adapt to a changing world.  He goes on, discussing the court’s squandered opportunity to craft a claim for victims of exposure and simultaneously providing safeguards and plaintiff thresholds that would prevent the sapping of resources.

Indeed, the world we live in today is not that of Blackstone.  Tort law developed in a century when injuries were a consequence of burgeoning industry.  Hands crushed in compactors and legs lost on railroad tracks are neat (on paper) and quantifiable.

Today, we face myriad dangers from unseen, yet equally deadly forces and actors.  Molecules and energies that trespass on our bodies due to the negligence of others are no less real than blood spilled by an unguarded saw.  And yet because we cannot see them, we allow those who cause the trespass to go undisturbed.

Law, like all things, must adapt or face obsolescence. A legal system that does not afford remedy until the worst possible scenario occurs does not conserve resources (as Chief Judge Lippman noted, “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 wrongful death suits.”).

A legal system where an actor may be negligent yet avoid consequences because their victim has yet to fall ill is not a deterrent.

In all, the most regrettable aspect of the Court of Appeals’ decision is that lead plaintiffs in big cases against Phillip Morris USA and other mass tortfeasors are almost invariably dead due to their manifested injuries.  After today, asymptomatic plaintiffs must continue to wait for their own injuries to manifest before seeking remedy in litigation; litigation that, in the style of Dickens, may very well outlive those asymptomatic plaintiffs.

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17 Responses Leave a comment

  • Mark Bower 2013.12.18 at 08:54 | Quote

    The entire appellate bench missed the point from the ground floor up. They framed the issue as one of “creating a new tort” – medical monitoring – and declined to create that new “tort”. But that is fundamentally not right. The medical monitoring that the plaintiffs need, is not a “tort” at all. The tort was exposing the plaintiffs to the harm; i.e., good old-fashioned negligence, the failure of the ordinary duty of reasonable care/conduct. The monitoring that is needed as a result is an item of DAMAGES, not a new form of tort.

  • Max Herman 2013.12.18 at 16:38 | Quote

    You’re absolutely right. Medical monitoring can and should be an aspect of consequential damages (and, admittedly, the Court of Appeals acknowledged it as such in their decision). The trouble for the Caronia plaintiffs, and the reason the issue was framed as “creating a new tort,” was that the limitations period had run for traditional negligence and strict liability. They hoped that, under a medical monitoring claim, accrual would not begin until an effective monitoring device came into existence (in this case LDCT).

  • Grant 2013.12.18 at 17:00 | Quote

    Due to the negligence of another. Really?

    I would argue not. There are two defences to the tort of negligence. The first is volenti non fit injuria which states: the plaintiff’s rights cannot have been violated if he consented to the risk of being injured.

    This defence is only valid if the plaintiff has had full knowledge of the risk of injury.

    For argument’s sake we can assume that this is not the case. Then the defence of contributory negligence is valid, where, if the plaintiff did not know of the risk of injury, but he ought to have known of the risk of injury.

    Both these defences are valid in the event that an actual injury is sustained. There is no negligence unless an injury [harm] is actually sustained.

  • Max Herman 2013.12.18 at 18:03 | Quote

    Grant, those are valid defenses often raised by defendants in smoking-related cases. However, though the question of medical monitoring was presented to the Court of Appeals in the context of plaintiff-smokers, medical monitoring as a claim would not have been limited to smoking.

    In fact, over the last 30 years, New York intermediate appellate courts and federal courts have discussed medical monitoring almost exclusively in the context of toxic exposure. Against those plaintiffs, whom are now equally as precluded from raising a medical monitoring cause of action as the Caronia smokers, the defenses you mention are inapplicable.

    With regard to your last comment, the cause of action would not have been based in negligence and would not have had a traditional injury requirement.

  • Grant 2013.12.18 at 23:17 | Quote

    Max,

    Thank’s for the reply.

    “LIPPMAN, Chief Judge (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.”

    Or, “Those coming to equity must come with clean hands.” Gill v Lewis [1956] 1 ALL ER.

    With regard to the toxic exposure in Askey v Occidental Chemical Corp, ignoring for the moment any statutory authority, a true cause of action lies in nuisance rather than negligence, under a US case Fontainebleau Hotel Corp v Forty-Five Twenty-Five [1959]; with the claimant asserting “sic utere tuo ut alienum non laedas.”

    Now, given that an injunction may/may not resolve the issue, then Shelfer v City of London Electric Lighting [1895], adopting Lord Cairn’s Act (1858), could be argued as authority for the awarding of damages in nuisance.

    Grant

  • Max Herman 2013.12.19 at 10:39 | Quote

    Grant,

    I think you’d have trouble winning over the NY Court of Appeals with that authority, but at least you’re trying to find an avenue of recovery for victims now without a claim for medical monitoring.

    Feel free to e-mail me if you’d like to discuss the subject in more depth!

    -Max

  • Grant 2013.12.19 at 17:13 | Quote

    Max,

    That would be good. If you email me with your email, I can then contact you. Just allow for the time difference – I’m in NZ

    Grant

  • Eric Turkewitz 2013.12.19 at 17:16 | Quote

    Max and Grant:

    If you take it to email, you deprive the rest of us of the benefits of your insight.

  • Grant 2013.12.19 at 18:25 | Quote

    Max,

    I accept that the authority quoted would only be persuasive in that it originates in a different jurisdiction.

    However, looking at the toxic landfill issue first: there is a cause of action in nuisance, and as indicated through persuasive authority, damages could be awarded if liability is found.

    This is just in that the emanations are an economic externality.

    The damages paid, could be utilised to medically monitor, where if harm was detected, then a cause of action could be founded in negligence; as there would be a duty of care established through the creation of a foreseeable risk, and the risk would be proximate.

    I do not however see how the above argument could be analogous to the smoking of cigarettes.

    The only way forward would be to legislate. Clearly “Prohibition” and the “War on drugs” indicate the futility of that approach.

    Grant

  • Max Herman 2013.12.19 at 19:59 | Quote

    Grant,

    Putting the question of authority aside, I think your proposition would be a good scenario. However, I think you’ll find that when damages are awarded based on nuisance, they are economic (as you indicated with your alliterative “emanations are an economic externality”). In such a case, the economic damages awarded to a small plaintiff likely would be a pittance when applied to lifelong medical monitoring. Further, plaintiffs exposed to “emanations” away from their own properties would find themselves unable to benefit from a nuisance claim.

    Further, simply giving a lump sum to these plaintiffs often is not sufficient. Indeed, the Caronia plaintiffs didn’t even ask for a lump-sum, but rather for a court-administered fund. Even the court opined that it lacked the proper expertise to administrate such a program, let alone a single plaintiff.

    I have no doubt that if injury manifested, the plaintiffs could make out a claim for negligence. But the fact that they could make out such a claim only upon manifestation is a central rationale for a medical monitoring claim.

    You’ve several times mentioned that you have trouble with the concept that smokers could maintain a claim. I think you will find Donovan v. Phillip Morris USA, Inc., 914 N.E.2d 891 (2009) enlightening, at least on the topic of medical monitoring.

    Legislation likely is the only alternative for asymptomatic plaintiffs seeking medical monitoring. However, I’m having trouble understanding how “Prohibition and the War on drugs” clearly indicate the futility of legislation. Are you suggesting that those legislative policies are indictments of US legislation as a whole? Or do you see some analogy to the instant case? I think you’ll find legislation more emblematic of what could be done in the WTC and asbestos legislation.

  • Brent W Blythe II 2013.12.19 at 20:11 | Quote

    Max,
    Concurring with you:

    Why should plaintiff’s right to equity for predictive/early detection and medically advantageous monitoring for any future manifestation of a slowly emerging, but, in fact, actual injury, be less than, say, another plaintiff’s equity WITH monitoring, to monitor a plume of slowly migrating toxic heavy metals from a shuttered factory site owned and operated by a Ford or a GE, that predictably may threaten local groundwater quality and homeowners’ wells, and lead to cumulative long-term injury to children living in a nearby neighborhood? Or the establishment of a developmental/behavioral monitoring program for those young children likely already exposed? It is exactly the same thing!

    As part of the relief/equity reasonably demanded from the injuring party (i.e. for a defective product or a reckless disregard for environmental safety), monitoring can provide for both early detection, and the real opportunity for early mitigation and further intervention on behalf of the injured. The injury or medical condition may not be clinically or symptomatically manifest yet, but is, nevertheless, statistically certain to be in progress (with high confidence) at the, organ, tissue, cellular or genetic level, based on the medically well-understood causal relationship between, say, exposure to, on one hand, smoke carcinogens or heavy metals, and on the other, future pulmonary or neurological disease states. In both cases. monitoring is what provides the highest, earliest, and most effective form of relief for plaintiffs and leads to the best outcome.

    Frankly, I don’t get the NY CofA view. I am certain, that this issue will eventually find its way into the Federal Court system and LDCT monitoring,(for its obvious benefits) will take hold.

  • Grant 2013.12.20 at 18:21 | Quote

    Max,

    Having read the Donovan case, I will accept then that sub-cellular damage as argued will suffice to establish harm [injury]. Thus one leg of the requirement in establishing liability is fulfilled.

    Given that the defendant’s created the risk of harm, and that that harm is foreseeable, another leg is satisfied.

    However the plaintiffs are still volens, or, contributory. Which in the case of volens negates liability, or if contributory, reduces any damages awarded.

    I’ll have to come back with some additional comments later – an emergency just arose

    Grant

  • Old Geezer 2013.12.20 at 19:40 | Quote

    Thank you, Eric, for keeping the conversation going here for us fans-of-how-the-law-works-for-real.

    I had occasion to visit my own attorney last week in a case of non-payment of an invoice I’d sent to the client months ago. Said attorney pointed out at least three ways of looking at the situation that I’d not thought of. Thankfully, none of them negate the contract and the resulting obligation to pay, but still, worth knowing in case of rebuttal.

    Great post and comment trail! Cheers to Max and Grant!

  • Grant 2013.12.21 at 14:13 | Quote

    Max,

    With regard to establishing a fund for medical monitoring. This is essentially a tax. Taxes cannot be passed forward. The reason being that the market price of a packet of cigarettes is the highest price the market will bear. If you increase the price, you will reduce demand, even given the inelasticity of the product.

    Further as was highlighted by his Honour, you create indeterminate liability. One of the purposes of law is to create transparency or an element of certainty, through which lawful actions can be planned and undertaken.

    Medical monitoring being a tax of indeterminate value, could have the effect of driving legitimate manufacturers out of business. Given the nature and demand for the product, this product would eventually be supplied through criminal organisations. Essentially you reproduce the Prohibition era with the banning of alcohol and the current criminalization of various classes of drugs.

    I would therefore argue that the principals of negligence law as they are currently are correct in that they limit the liability of manufacturers to those who voluntarily assume the risk of harm.

    Grant

  • Grant 2013.12.21 at 14:17 | Quote

    Brent,

    “Why should plaintiff’s right to equity for predictive/early detection and medically advantageous monitoring for any future manifestation of a slowly emerging, but, in fact, actual injury, be less than, say, another plaintiff’s equity WITH monitoring, to monitor a plume of slowly migrating toxic heavy metals from a shuttered factory site owned and operated by a Ford or a GE, that predictably may threaten local groundwater quality and homeowners’ wells, and lead to cumulative long-term injury to children living in a nearby neighborhood?”

    The answer is because those who smoke do so as a personal choice. In the case of toxic chemicals emanating from your land to mine, I do not have that choice.

    Grant

  • Grant 2013.12.22 at 16:45 | Quote

    Max,

    Returning once again to the toxic waste emissions considered now under statutory authority.

    If statutory authority is provided, then, an illegal activity is made legal.

    Parliament is supreme. However, when authorising a statutory provision that removes a fundamental right, that authority must be express. It is not sufficient to imply.

    R v Secretary of State for the Home Dept. Ex Parte Simms [2000] 2 AC 115 (HL)

    “The application of the principal of legality in this case also made clear that the principal applies to subordinate legislation such as Regulations…”

    “The principal of legality holds that Parliament must “speak clearly” if it wishes to override fundamental rights. Fundamental rights cannot be overridden by general or ambiguous words. The common law has evolved an evaluative and principled approach that now recognises a class of rights as constitutional. Classifying a right as constitutional strengthens the normative force and reinforces its protection against legislative abrogation”

    So while Congress or Parliament may abrogate or limit fundamental rights under common law, viz the cause of action in nuisance, that would not authorise a a violation of rights under negligence.

    I understand that in the US laws passed by Congress can be Judicially Reviewed, however, Congress is [like Parliament] still supreme in that a “stripper” can be added thereby removing the right of Judicial Review.

    So you could have a situation whereby for toxic waste pollution the only remaining cause of action lies in negligence.

    If the Courts are willing to accept sub-clinical damage as ‘harm’, then damages could be awarded. Those damages would then need to be invested to fund the requirement for potential medical treatment in the case of clinical symptoms of disease progression manifesting.

    Insurance cover should also be obtainable as the sub-clinical damage does not guarantee progression to a disease state.

    Therefore the legal fight would be better focussed upon establishing sub-clinical damage as de facto harm, rather than waste further effort and resources upon establishing a fund for medical monitoring in this class of plaintiff.

    Grant

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