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September 19, 2001


The opinion of the court was delivered by: Scullin, Chief Judge.



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.

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 ...

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