The opinion of the court was delivered by: Scullin, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs John J. Neri ("John Jr.") and P. Lauren
Neri,*fn1 together with Rose Marie Neri, the Executor of the
Estate of her husband John E. Neri ("John Sr."),*fn2
commenced this action, on February 2, 1998. They alleged the
following causes of action on behalf of John Sr. and John Jr.:
(1) intentional misrepresentation and fraud; (2) strict
liability; (3) negligence; and (4) breach of express and implied
warranties. In addition, Plaintiff Rose Marie Neri filed claims
for loss of consortium and wrongful death; and Plaintiff P.
Lauren Neri brought a claim for loss of consortium. All of these
claims were based upon Plaintiffs' allegation that Defendant's
cigarettes caused John Sr. and John Jr. to contract (and in the
case of John Sr. to die from) emphysema.
In a Memorandum-Decision and Order, dated September 28, 2000,
the Court granted Defendant's motion for summary judgment with
respect to most of Plaintiffs' claims. Thus, the only remaining
claims are those based upon (1) strict liability for failure to
warn prior to 1969; (2) negligent failure to warn prior to 1969;
(3) wrongful death and loss of consortium; and (4) punitive
damages. Moreover, the Court explicitly declined to address the
statute of limitations issue with respect to Plaintiffs' failure
to warn claims because the parties briefed the issue "in such a
conclusory manner that the Court c[ould not] discern when John
Sr. and John Jr. discovered the `primary condition' on which
their claims are based." See Memorandum-Decision and Order,
dated September 28, 2000, at 34. The Court also provided
Defendant with forty-five days in which to renew its motion for
summary judgment. See id. at 45.
Presently before the Court is Defendant's renewed motion for
summary judgment, asserting that Plaintiffs' failure to warn
claims fail for five independent reasons: (1) the claims are
barred by New York's three-year statute of limitations; (2)
Defendant had no duty to provide additional warnings about the
risks of smoking, including the risk of emphysema; (3)
Plaintiffs have not identified any specific information about
emphysema that Defendant allegedly knew and that it failed to
disclose or that was not otherwise available to the public; (4)
Plaintiffs cannot show that any alleged warning would have
caused them to do anything differently; and (5) even if
Plaintiffs could make the requisite showing, they could not
prove
that their injuries would have been avoided in such
circumstances.
In addition to its renewed motion for summary judgment,
Defendant also moved (1) to sever Plaintiffs' claims and for a
separate trial; (2) to exclude Dr. Pollay's testimony and to
strike Plaintiffs' reference to Dr. Pollay's prior testimony;
(3) to file under seal and in camera the affidavit of Robert
McDermott, and (4) to strike the documents attached to the
affidavit of Erin McKinley. The Court will address these motions
seriatim.
A. Defendant's motion for summary judgment
Section 214-c(2) of New York Civil Practice Law and Rules
provides that the time for commencing a cause of action for
damages resulting from exposure to a harmful substance begins to
run from the date that the "injury" was discovered or could have
been discovered with reasonable diligence. The seminal case
interpreting C.P.L.R. § 214-c(2) is Wetherill v. Eli Lilly &
Co., 89 N.Y.2d 506, 655 N.Y.S.2d 862, 678 N.E.2d 474 (1997).
The specific issue in that case was "whether an `injury' is
discovered within the meaning of CPLR 214-c(2) when the symptoms
become apparent or instead when the connection between those
symptoms and the injured's exposure to a toxic substance is
recognized." Id. at 509, 655 N.Y.S.2d 862, 678 N.E.2d 474. The
New York Court of Appeals held that the statute of limitations
begins to run "when the injured party discovers the primary
condition on which the claim is based." Id.
In Wetherill, the plaintiff was treated in 1978 or 1979 for
dysplasia, a diagnosis indicating a "pre-cancerous" condition in
her cervix. Thereafter, she suffered four successive
miscarriages in 1980 or 1981, 1984, early 1986 and late 1986. In
1987, the plaintiff learned that she had a T-shaped uterus, and
she underwent surgery for the removal of adhesions and uterine
septum. Less than a year later, she delivered a preterm baby
after 24 weeks of gestation, but the baby did not survive.
Several months later, the plaintiff was advised that she had an
"incompetent" cervix, and she was subsequently treated for that
condition.
The plaintiff testified at her deposition that it was not
until shortly after her 1998 preterm delivery that she learned
that her mother may have taken DES, which might have affected
the plaintiffs reproductive health. The plaintiff had not
previously heard about that drug. The plaintiff did not
immediately pursue the matter by asking her mother directly
whether she had taken DES. Rather, she waited until late 1989,
at which time she overheard the physician who was treating her
for her current pregnancy tell a medical assistant that the
plaintiffs medical history revealed "classic symptoms of DES."
The plaintiff commenced her suit against several DES
manufacturers on August 14, 1992. The defendants moved for
summary judgment on the ground that the claim was time-barred
because it was commenced more than three years after the
plaintiff had discovered the reproductive ailments that formed
the basis of her claim. The plaintiff opposed the motion,
arguing that the time to commence her action did not begin to
run until late 1989, when she overheard the conversation between
her physician and his assistant and thereby learned that her
symptoms were likely to be DES-related.
The New York Court of Appeals rejected the plaintiffs
argument. The court found that since the plaintiff
unquestionably knew about the medical conditions that formed the
basis of her complaint
more than three years before she commenced the action, she could
succeed only if "`discovery of the injury' is not complete
within the meaning of the statute until the injured party
discerns both the bodily symptoms and the fact that those
symptoms have a nonbiological cause." Id. at 511, 655 N.Y.S.2d 862,
678 N.E.2d 474. The court noted that the plaintiffs theory
had some appeal because "it would benefit potential claimants
whose symptoms, like plaintiffs, were ambiguous and are not
always associated with exposure to a foreign substance." Id.
Nonetheless, the court concluded that the plaintiffs
interpretation of C.P.L.R. § 214-c(2) was "out of harmony with
the statutory design and is unsupported by the provision's
legislative history." Id. Therefore, the court held that since
the plaintiff had known of the primary conditions that formed
the basis of her claim — her dysplasia, her miscarriages, her
misshapen uterus, and her incompetent cervix — by 1988, her 1992
action was properly dismissed because it was commenced more than
three years after her "discovery of the injury."
In closing, the court noted its general agreement with the
proposition that "`CPLR 214-c is a remedial measure and that, as
such, it should be liberally construed to effectuate its
purposes." Id. at 514, 655 N.Y.S.2d 862, 678 N.E.2d 474
(citations omitted). Nonetheless, the court stated that "[e]ven
with that axiom of statutory construction, . . ., [it] was
obliged to interpret the statute in a way that makes sense in
light of both the legislative design and the specific problem
that the provision was adopted to remedy." Id. The court
further explained that "there is nothing in either the language
of the statute or its history to suggest that the Legislature
intended to make the running of the Statute of Limitations
depend on claimants' subjective understanding of the etiology of
their conditions." Id. at 514-15, 655 N.Y.S.2d 862,
678 N.E.2d 474. The court also noted its disagreement with the dissent's
interpretation and rationale, which the court stated would
result in "the date for commencing ...