Does New York recognize an independent cause of action seeking medical monitoring by cigarette manufacturers to assist in the early detection of lung cancer? Answer: No.

In Caronia v. Philip Morris USA, 2013 NY Slip Op 08372 (decided December 17, 2013), the Second Circuit Court of Appeals asked the Court “to determine whether [New York] 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.” Id. at 1-2.

The Court of Appeals summarized the claims and relief sought:

Plaintiffs, who are all over the age of 50, 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. Id. at 2.

The District Court dismissed the various claims. The Second Circuit affirmed dismissal of the negligence, strict liability and breach of implied warranty claims and, at the same time, certified the following question of law to the New York Court of Appeals:

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? Id.

The Court of Appeals, as a threshold matter, stated that:

A threat of future harm is insufficient to impose liability against a defendant in a tort context (see Prosser & Keeton, Torts § 30 at 165 [5th ed 1984]). The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state's tort system (see Kimbar v Estis, 1 NY2d 399, 403 [1956] [no action will lie in negligence absent a "resultant injury to plaintiff"]; see also Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107 [1983] [plaintiff must sustain injury or damage before being able to recover under a strict products liability theory]). The physical harm requirement serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims. Id. at 3.

The Court noted that, “[h]aving alleged no physical injury or damage to property in their complaint, plaintiffs' only potential pathway to relief is for this Court to recognize a new tort, namely, an equitable medical monitoring cause of action.” Id.

The Court went on to conclude that:

Policy reasons…militate against a judicially-created independent cause of action for medical monitoring. Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence. That does not prevent plaintiffs who have in fact sustained physical injury from obtaining the remedy of medical monitoring. Such a remedy has been permitted in this State's courts as consequential damages, so long as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of action. Id. at 8.