Marcia L. Caronia, Linda McAuley and Arlene Feldman, Appellants,
Philip Morris USA, Inc., Respondent.
Victoria E. Phillips, for appellants.
Kenneth J. Parsigian, for respondent.
Product Liability Advisory Council, Inc.; American Chemistry Council et al.; Business Council of New York State, Inc. et al.; and American Legacy Foundation et al., amici curiae.
The United States Court of Appeals for the Second Circuit has asked us to determine whether this State recognizes an independent equitable cause of action for medical monitoring and, if so, what the elements, appropriate statute of limitations and accrual date are for that particular cause of action. I.
Plaintiffs, who are all over the age of fifty, are current and/or former smokers of Marlboro cigarettes with histories of 20 pack-years  or more. None of the plaintiffs has been diagnosed with lung cancer, nor are they currently "under investigation by a physician for suspected lung cancer." Plaintiffs commenced this putative class action against Philip Morris USA, Inc. in federal court asserting claims sounding in negligence, strict liability and breach of the implied warranty of merchantability. Plaintiffs requested equitable relief, namely, the creation of a court-supervised program, at Philip Morris's expense, that would provide them with Low Dose CT Scanning of the chest (LDCT), which plaintiffs claim is a type of medical monitoring that assists in the early detection of lung cancer. At the completion of discovery, the District Court granted Philip Morris summary judgment with regard to plaintiffs' negligence and strict liability claims, but ordered further briefing concerning the breach of implied warranty claim and on the issue whether our Court would recognize an independent cause of action for medical monitoring (see Caronia v Philip Morris USA, Inc., 2010 WL 520558, *1, 2010 U.S. Dist LEXIS 12168, *2-3 [ED NY, Feb. 11, 2010]).
In the interim, plaintiffs served a fourth amended complaint asserting, in addition to their prior causes of action, a separate, equitable cause of action for medical monitoring, seeking the establishment of the medical monitoring program. The District Court dismissed the breach of implied warranty and medical monitoring claims, holding that although this Court would likely recognize the latter claim, plaintiffs "failed to plead that Philip Morris's allegedly tortious conduct is the reason that they must now secure a monitoring program that includes LDCT scans" (Caronia v Philip Morris USA, Inc., 2011 WL 338425, *3, 2011 U.S. Dist LEXIS 12610, *8-9 [ED NY, Jan. 13, 2011]). The United States Court of Appeals for the Second Circuit affirmed the dismissal of plaintiffs' negligence, strict liability and breach of implied warranty claims, but, acknowledging that this Court has not considered whether an independent cause of action for medical monitoring exists in New York, certified the following questions of law:
(1) Under New York Law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, pursue an independent equitable cause of action for medical monitoring for such a disease?
(2) If New York recognizes such an independent cause of action for medical monitoring,
A. What are the elements of that cause of action?
B. What is the applicable statute of limitations, and when does that cause of action accrue?
We answer the first certified question in the negative, and decline to answer the second certified question as academic.
Plaintiffs do not claim to have suffered physical injury or damage to property. They assert, rather, that they are at an "increased risk" for developing lung cancer and would benefit from LDCT monitoring, which they claim would allow them to discover the existence ...