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Grill v. Philip Morris USA

September 8, 2009

JOHN GRILL, PLAINTIFF,
v.
PHILIP MORRIS USA, INC., DEFENDANT.



The opinion of the court was delivered by: Seibel, J.

MEMORANDUM DECISION AND ORDER

Before the Court is Defendant Philip Morris USA, Inc.'s ("Philip Morris") Motion for Summary Judgment originally filed on October 23, 2006 (Doc. 20), and reasserted on September 13, 2007 (Doc. 70).

I. Background

Plaintiffs John and Ann Grill*fn1 filed this action on October 28, 2005, invoking the Court's diversity jurisdiction to assert state law claims against Defendant Philip Morris, the designer, marketer, manufacturer and distributor of Marlboro cigarettes, for fraud, design defect (strict liability), negligent design and testing, negligence in failing to warn outside of advertising or promotion, negligent advertising and marketing, breach of implied warranty, and loss of consortium. (Doc. 1.) Ann Grill, who was born on February 26, 1962, began smoking Marlboro cigarettes at the age of twelve in 1974 or 1975, when she was in junior high school. (Am. Compl. ¶ 5; Def.'s Local Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1 Statement") ¶ 7.) Although she attempted to quit at the age of sixteen or seventeen when she learned about the health risks of smoking, she found that she was addicted and was unable to quit. (Def.'s 56.1 Statement ¶¶ 12, 55; Pl.'s Resp. to Def.'s 56.1 Statement and Counterstatement of Material Disputed Facts Pursuant to Local Rule 56.1 ("Pl.'s 56.1 Statement") ¶¶ 11-12.) She smoked at least one pack of Marlboro cigarettes per day for over twenty years (Am. Compl. ¶ 6), and did not quit smoking until she was thirty-eight years old in 2000 (Def.'s 56.1 Statement ¶ 13; Pl.'s 56.1 Statement ¶¶ 1-2).

On October 12, 2002, Ann Grill was admitted to the hospital for multiple symptoms including pleuritic chest pains (Def.'s 56.1 Statement ¶ 14) and pain in her "lower area . . . near [her] gallbladder," (Ann Grill Dep. 149, Apr. 20, 2006), which seemed to radiate towards the middle of her epigastric area (Decl. of Jerome H. Block in Opp'n to Def.'s Mot. for Summ. J. ("Block Grill Decl.") Ex. G ("Oct. 13, 2002 Putnam Hospital Center Admitting History and Physical")) and which the doctor described as "abdominal pain of unclear etiology" (id.). On October 14, 2002, a CT scan*fn2 of her chest revealed a mass on her upper right pulmonary lobe. (Def.'s 56.1 Statement ¶¶ 15-16.) The radiologist who interpreted the chest scan noted that "[p]rimary carcinoma cannot be excluded." (Id. ¶ 19.) On October 15, 2002, a pulmonary specialist reviewed the results and told Ann Grill that the lesion could be lung cancer but was more likely pneumonia. The specialist then prescribed a two-week course of antibiotics and another CT scan to see whether the lesion would resolve. (Id. ¶ 23; Pl.'s 56.1 Statement ¶ 23.) The lesion was biopsied in February 2003, and on February 24, 2003 she was diagnosed with adenocarcinoma in the lung. (Am. Compl. ¶ 7; Def's 56.1 Statement ¶ 24; Pl.'s 56.1 Statement ¶ 17.) Despite undergoing two surgeries, one in 2003 and the other in 2005, and chemotherapy treatments, she passed away in January 2007, at the age of forty-four, as a result of lung cancer. (Am. Compl. ¶¶ 1, 7-8.)

On January 3, 2006, Plaintiff voluntarily dismissed his negligent advertising and marketing and breach of implied warranty claims with prejudice. (Doc. 10.) Defendant filed a Motion for Summary Judgment on October 23, 2006. (Doc. 20.) Plaintiff filed an Opposition on November 17, 2006 (Doc. 31), and Plaintiff filed a Reply on December 11, 2006 (Doc. 36.) In January 2007, before the Motion for Summary Judgment was decided, Plaintiff Ann Grill passed away as a result of lung cancer purportedly caused by smoking Marlboro Cigarettes. (Doc. 54.)

On August 29, 2007, the Hon. Charles L. Brieant, Jr.*fn3 ordered that Plaintiff John Grill be substituted as the sole Plaintiff for the purposes of prosecuting this action on behalf of himself and the Estate of Ann Grill. He also ordered that the Motion for Summary Judgment be withdrawn without prejudice with leave to renew following a status conference with counsel and the Court on September 28, 2007. (Doc. 63.) On September 11, 2007, Plaintiff John Grill filed an Amended Complaint, which in addition to substituting John Grill as the sole Plaintiff and withdrawing the previously asserted claims for negligent advertising and marketing and breach of implied warranty, added a claim for wrongful death and limited the fraud and negligent failure to warn outside of advertising or promotion claim to the time period up to and including February 26, 2008, the date on which Ann Grill turned eighteen years old. (Doc. 65.) By Stipulation between the Parties, "so ordered" by Judge Brieant on September 13, 2007, Defendant's Motion for Summary Judgment was reasserted as to the Amended Complaint. (Doc. 70.) On January 6, 2009, Plaintiff voluntarily dismissed with prejudice his claims for design defect under a strict liability theory and negligent design and testing. (Doc. 76.) Thus, the remaining claims in this action are fraudulent concealment until February 26, 1980, negligent failure to warn outside of advertising and promotion until February 26, 1980, wrongful death, and loss of consortium. In accordance with this Court's December 19, 2008 Order (Doc. 74), which directed the Parties to file supplemental briefs in light of the recent decision by the United States Supreme Court in Altria Group, Inc. v. Good, 129 S.Ct. 538 (2008), and the recent decision by the New York Court of Appeals in Adamo v. Brown & Williamson Tobacco Corp., 900 N.E.2d 966 (N.Y. 2008), the Parties filed simultaneous supplemental briefs on January 16, 2009 (Docs. 77, 78).

II. Discussion

A. Summary Judgment Standards

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id. On a motion for summary judgment, courts must "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal quotation marks omitted). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party "to present evidence sufficient to satisfy every element of the claim." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

Fed. R. Civ. P. 56(e)(2); see Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004).

"Where a summary judgment motion is supported or opposed by affidavits, those 'affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'" Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (quoting Fed. R. Civ. P. 56(e)).

B. Statute of Limitations

Defendant argues that Plaintiff's claims for negligent failure to warn and fraudulent concealment are barred by the three-year statute of limitations for negligence actions. "Under New York law, the party invoking a statute of limitations bears the burden of proof for establishing such an affirmative defense." Keating v. U.S. Lines, Inc., No. 04-CV-6614, 2006 U.S. Dist. LEXIS 37114, at *17 (S.D.N.Y. June 7, 2006)(citing Bano v. Union Carbide Corp., 361 F.3d 696, 710 (2d Cir. 2004)). New York Civil Practice Law and Rules ("C.P.L.R.") 214-c(2) provides that the three year period within which an action to recover damages for personal injury . . . caused by the latent effects of exposure to any substance . . . upon or within the body . . . must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

N.Y. C.P.L.R. 214-c(2) (2009). C.P.L.R. 214-c is a "remedial measure" that "should be liberally construed to effectuate its purposes." Wetherhill v. Eli Lilly & Co., 678 N.E.2d 474, 479 (N.Y. 1997). Construing "injury" within the meaning of C.P.L.R. 214-c, the New York Court of Appeals held that "the time for bringing the action begins to run under the statute when the injured party discovers the primary condition on which the claim is based." Id. at 475.

"Thus, in many cases, discovery of an injury occurs when the plaintiff is actually diagnosed as suffering from a particular condition or disease, even though unaware of its cause." Bartlett v. Moore Bus. Forms, Inc., No. 96-CV-1632, 2000 U.S. Dist. LEXIS 8686, at *12 (N.D.N.Y Mar. 30, 2000).

With respect to Plaintiff's negligent failure to warn claim, Defendant contends that it is time-barred because it accrued on October 14 or 15, 2002, more than three years before Plaintiff commenced this action on October 28, 2005. On October 14, 2002, after she was hospitalized for symptoms including abdominal and chest pain, a CT scan revealed a lesion on Ann Grill's upper right lobe. (Def.'s 56.1 Statement ¶¶ 15-16.) Defendant claims that the following day, a pulmonary specialist who reviewed the results of the CT scan told Ann Grill that the lesion could conceivably be lung cancer. (Id. ¶ 19.) The Parties agree, however, that the pulmonary specialist believed the lesion was highly likely to be pneumonia, and prescribed a two-week course of antibiotics followed by another CT scan to see whether the lesion would resolve. (Id. ¶¶ 21-23; Pl.'s 56.1 Statement ¶¶ 21-23; Block Grill Decl. ¶ 120.) After the course of antibiotics, Ms. Grill felt much better, and although a November 1, 2002 CT scan showed the lesion was still present, it was smaller and her doctor continued to believe it was unlikely to be cancerous. (Block Grill Decl. Ex. M (Nov. 4, 2002 Notes of Dr. Agarwal).) Her doctor thus recommended against an invasive biopsy.*fn4 (Id. ¶ 130.) Only after she developed a cough and a December CT scan showed the lesion still present did the doctor recommend the biopsy that revealed her lung cancer. (Id. ¶¶ 132-136.) Accordingly, Plaintiff argues that his cause of action did not accrue until February 2002 because the primary condition that forms the basis of Plaintiff's claim is lung cancer, and the undisputed evidence shows that Ann Grill did not learn until February 2003, when a biopsy was performed, that she had lung cancer. As such, the discovery of her injury did not occur within the meaning of C.P.L.R. 214-c until February 2003, "when [she was] diagnosed with the primary condition for which damages are sought." Wetherhill, 678 N.E.2d at 478 n.4.

While Ms. Grill "discovered" that she had some kind of chest lesion in October 2002, she reasonably did not discover that it was cancer until February 2003. Given that in October 2002, the lesion was unaccompanied by coughing or shortness of breath and was consistent with pneumonia and in fact believed to be pneumonia by competent professionals, the mere existence of some kind of lesion is a "symptom[] that [is] too isolated or inconsequential to trigger the running of the Statute of Limitations under CPLR 214-c(2)." Wetherill, 678 N.E.2d at 478 n.4; see Cochrane v. AC and S, Inc., No. 92-CV-8841, 1998 U.S. Dist. LEXIS 14633, at *18-22 (S.D.N.Y. Sept. 18, 1998) (symptoms of shortness of breath and difficulty breathing were too "isolated and generic" to commence running of statute of limitations on claim based on asbestos-related disease). Although Ms. Grill's doctors recognized the remote possibility of lung cancer in October 2002 (Def.'s 56.1 Statement ¶ 21; Pl.'s 56.1 Statement ¶ 21), the relevant inquiry for statute of limitations purposes is when the injured party became aware of the primary condition on which the plaintiff's claim is based. See Cochrane, 1998 U.S. Dist. LEXIS 14633, at *13. Because that occurred months later, Defendant has failed to meet its burden of showing that there are no issues of material fact as to whether Ann Grill should have, through the reasonable exercise of diligence, discovered that she had lung cancer before October 28, 2002. See id. (question of fact regarding when Plaintiff was first aware of primary condition -- asbestosis -- where plaintiff went to emergency room complaining of shortness of breath, but symptoms were not sufficiently severe to impact his life until later date); Castiglione v. E.A. Morse & Co., 802 N.Y.S.2d 278, 280 (App. Div. 2005) (experience of some symptoms following exposure to fumes from defendant's product were too isolated or inconsequential to trigger running of statute of limitations); Cabrera v. Picker Int'l, Inc., 770 N.Y.S.2d 302, 303 (App. Div. 2003) (primary condition -- chronic obstructive pulmonary disease -- not discoverable through reasonable diligence where "plaintiff complained of shortness of breath and had intermittent coughs, her physical activities were not affected, she did not miss work"); Johnson v. Exxon Corp., 685 ...


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