The New York Court of Appeals may soon have to decide whether an independent equitable claim for medical monitoring is a recognized claim in New York. In Caronia, et al. v. Philip Morris USA, Inc., plaintiffs filed claims against a cigarette manufacturer alleging that its cigarettes contain unnecessarily dangerous levels of carcinogens. For relief, the plaintiffs sought, in part, for the court “to require Philip Morris to fund a program of medical monitoring for longtime smokers of Marlboro cigarettes who have not been diagnosed with, but are at risk for, lung cancer.” The Second Circuit affirmed the lower court’s summary judgment in favor of the defendants on the claims of negligence, strict liability, and breach of implied warranty of merchantability, but certified questions of law regarding the medical monitoring claim to the New York Court of Appeals.

Specifically, the questions certified are:

  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,
    1. What are the elements of that cause of action?
    2. What is the applicable statute of limitations, and when does that cause of action accrue?

Should the state court accept the certification, its answer to these questions could greatly impact toxic tort cases in New York as plaintiffs frequently assert this claim in toxic tort cases.

Click here for the Second Circuit’s opinion and certification to the New York Court of Appeals.