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 an action under CPLR 214-c(2)
[depending] on such fortuitous circumstances as the medical
sophistication of the individual plaintiff and the diagnostic
acuity of his or her chosen physician." Id. at 515,
655 N.Y.S.2d 862, 678 N.E.2d 474 (footnote omitted).
Applying the reasoning in Wetherill to the facts of the
present case leads the Court to the inescapable conclusion that
Plaintiffs' failure to warn claims are time-barred. With respect
to John Sr., there is overwhelming evidence that he knew about
the medical condition that formed the basis of his complaint
more than three years before the present action was filed. In
fact, there does not appear to be any evidence to the contrary.
Although Plaintiffs assert that John Sr.'s claims are timely,
the evidence they point to does not support their contention.
For example, John Sr.'s wife, Rose Neri, testified at her
deposition that John Sr. knew that he had emphysema at least a
couple of years before he passed away because Dr. Aiello told
him "[t]hat he had emphysema and it was caused by the
cigarettes." See Transcript of the Deposition of Rose Neri,
dated July 27, 1999 ("R. Neri Tr."), at 77. When asked
specifically, "What's the earliest diagnosis of emphysema that
you recall for your husband?", Mrs. Neri responded, "Just a
couple of years before he died." See id. at 91. John Sr. died
on July 10, 1996, thus, a couple of years before he died, would
have been sometime in 1994 — more than three years before this
action was commenced on February 2, 1998.
Mrs. Neri's testimony is consistent with the other evidence in
this case. Plaintiff's own expert, Dr. David J. Davin, wrote a
letter stating that "[t]he medical record of
John E. Neri is replete with evidence that amply demonstrates
both the chronicity as well as the severity of his COPD [chronic
obstructive pulmonary disease]*fn3 well before his January 6,
1993 coronary bypass surgery and his initial pulmonary
evaluation conducted by Dr. Aiello later that year." See
Letter of David J. Davin, M.D. to Erin McKinley, Esq., dated
November 1, 1999. Moreover, Dr. Davin testified at his
deposition that there is "[n]o doubt in my mind, no doubt
whatsoever that Mr. Neri had substantial chronic obstructive
pulmonary disease before his surgery on January 6[, 1993],
. . ." See Transcript of Deposition of David J. Davin, M.D.,
dated November 19, 1999, at 110. He explained further that "this
individual had substantial COPD before he was put to sleep on
January 6, 1993. I'm a hundred percent certain of that. . . ."
See id. at 187. Likewise, in a letter Dr. Aiello wrote to Dr.
Dube on November 18, 1993, he stated that "[w]e have clear cut
evidence of . . . obstructive airways disease, . . . which I
think should be addressed therapeutically at this time." See
Letter of Dr. Aiello to Dr. Dube, dated November 18, 1993.
Similarly, at his deposition, Dr. Aiello testified that "on the
day that I saw [John Sr., November 10, 1993], . . . what I saw
on the pulmonary function testing was related to his obstructive
airways disease." See Transcript of Deposition of Thomas R.
Aiello, M.D., dated December 13, 1999 ("Aiello Tr."), at 134.
Based upon this evidence, much of which Plaintiffs' own experts
supplied, the Court concludes that John Sr. knew about the
primary condition upon which his claims are based more than
three years prior to the commencement of this action.
Accordingly, the Court grants Defendant's motion for summary
judgment with respect to John Sr.'s failure to warn claims, as
well as the loss of consortium, wrongful death, and punitive
damages claims related to those causes of action.
The same result befalls John Jr.'s claims. It is undisputed
that the symptoms of emphysema are shortness of breath,
difficulty breathing, and sometimes wheezing. See Transcript
of Deposition of William A. Farone, M.D., dated September 22,
1999, Vol. I at 29 ("[W]henever there's a disease, there are
certain symptoms associated with that disease, for example with
emphysema. It's shortness of breath, difficulty breathing. So,
if there's a diagnosis that he has emphysema, he has those
symptoms."); Transcript of Deposition of John H. Sipple, M.D.,
dated December 7, 1999, at 64 (stating that the most significant
symptoms of emphysema are "cough, shortness of breath . . .
[and] sometimes [wheezing]."); Transcript of Deposition of
Steven R. Lindemann, M.D., dated November 12, 1999, at 27
(stating that the "symptoms [of emphysema] can be shortness of
breath, coughing, frequent infections."). Nor is there any
dispute that John Jr. suffered shortness of breath and at least
some coughing more than three years before this action was
commenced. What is at issue is whether these symptoms were
significant enough to put John Jr. on notice of the injury that
forms the basis of his claims.
To support its position that John Jr. had notice of his injury
more than three years prior to the commencement of this action,
Defendant points to the following excerpt from John Jr.'s
Q: Why did you try to cut down [on your smoking] in
your late 20s?*fn4
A: I felt myself getting a little winded and thought
maybe I was smoking too much.
Q: You were getting a little short of breath?