Marcia L. Caronia, Linda McAuley and Arlene Feldman, Appellants,v.Philip Morris USA, Inc., Respondent.BriefN.Y.May 30, 2013CTQ-2013-00004 Court of Appeals STATE OF NEW YORK MARCIA L. CARONIA, LINDA MCAULEY, and ARLENE FELDMAN, Plaintiffs-Appellants, against PHILIP MORRIS USA, INC., Defendant-Respondent. >> >> REPLY BRIEF FOR PLAINTIFFS-APPELLANTS PHILLIPS & PAOLICELLI LLP Attorneys for Plaintiffs-Appellants 380 Madison Avenue, 24th Floor New York, New York 10017 212-388-5100 On Questions Certified by the United States Court of Appeals for the Second Circuit (USCOA Docket No. 11-0316-cv) To Be Argued By: Victoria E. Phillips Time Requested: 30 Minutes Of Counsel: Steven J. Phillips Victoria E. Phillips Aryeh L. Taub Lisa W. Davis Date Completed: September 30, 2013 {00014810} i TABLE OF CONTENTS INTRODUCTION ............................................................................................ 1 ARGUMENT .................................................................................................... 6 POINT I PHILIP MORRIS FAILS TO ADDRESS THE COMPELLING EQUITABLE MERITS OF PLAINTIFFS’ CLAIMS .............................. 6 POINT II POLICY CONSIDERATIONS FAVOR THE RECOGNITION OF EQUITABLE SURVEILLANCE CLAIMS ....................................... 10 POINT III PLAINTIFFS HAVE STATED A CLAIM FOR MEDICAL MONITORING REGARDLESS OF WHETHER PHYSICAL INJURY IS REQUIRED ............................................................................ 23 POINT IV THESE ACTIONS WERE TIMELY COMMENCED, AND PHILIP MORRIS’ CONTRARY ARGUMENT IGNORES THE POLICIES UNDERLYING BOTH LACHES AND ACCRUAL JURISPRUDENCE .................................................................................... 29 POINT V PHILIP MORRIS’ PROPOSED ELEMENTS OF A SURVEILLANCE CLAIM DO NOT BEAR SCRUTINY ...................................................... 38 a. “Negligence Only” ....................................................................... 39 b. Proximate Causation..................................................................... 41 c. “Medical Consensus” ................................................................... 45 d. Damages ....................................................................................... 48 e. Class Action Considerations ........................................................ 50 POINT VI PLAINTIFFS’ LEGAL CLAIMS WERE IMPROPERLY DISMISSED ............................................................................................... 53 A. Plaintiffs’ Arguments are Entirely Consistent with the Certification Order ........................................................................ 53 B. Plaintiffs’ Claims are Timely ........................................................ 56 {00014810} ii C. Philip Morris Misapprehends New York Law, Implicitly Suggesting that Its Products Carry No Implied Warranty of Merchantability......................................................................... 63 CONCLUSION ................................................................................................. 68 {00014810} iii TABLE OF AUTHORITIES Page(s) Cases Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524 (S.D.N.Y. 2007) ...................................................... 2, 12, 28 Acevedo v. Consolidated Edison Co., 189 A.D.2d 497 (1st Dept. 1993) ....................................................................... 12 Ain v. Glazer, 257 A.D.2d 422 (1st Dept. 1999) ....................................................................... 38 Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (1999) ................................................................................... 44, 54 Askey v. Occidental Chemical Corp., 102 A.D.2d 130 (4th Dept 1984) .................................................................passim Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987) ............................................................................passim Baity v General Elec. Co., 86 A.D.3d 948 (4th Dept. 2011) ......................................................................... 12 Barash v. Estate of Sperlin, 271 A.D.2d 558 (2d Dept. 2000) ........................................................................ 38 Barenboim v Starbucks Corp., 2013 N.Y. LEXIS 1678 (N.Y. June 26, 2013) ................................................... 54 Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998) ............................................................................... 18 Becklev v. United States, 1995 U.S. Dist. LEXIS 14599 (S.D.N.Y. Oct. 5, 1995) ............................... 11, 35 {00014810} iv Benaquista v. Municipal Hous. Auth., 212 A.D.2d 860 (3d Dept. 1995) ........................................................................ 43 Blanco v. AT&T Co., 90 N.Y.2d 757 (1997) ............................................................................. 31, 60, 62 Bocook v. Ashland Oil, Inc., 819 F. Supp. 530 (S.D.W. Va. 1993) .................................................................. 15 Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999) ............................................................................ 54 Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ariz. Ct. App. 1987) ...............................................................passim Capicchioni v. Morrissey, 205 A.D.2d 959 (3d Dept. 1994) ........................................................................ 42 Carbo Indus. Inc. v. Becker Chevrolet Inc., 112 A.D.2d 336 (2d Dept. 1985) ........................................................................ 65 Caronia v. Philip Morris United States, Inc., 715 F.3d 417 (2d Cir. 2013) ......................................................................... 55, 58 Caruolo v. John Crane, Inc., 226 F.3d 46 (2d Cir. 2000) ................................................................................. 42 City of New York v. State, 40 N.Y.2d 659 (1976) ................................................................................... 30, 59 Codling v. Paglia, 32 N.Y.2d 330 (1973) ............................................................................. 40, 67, 68 Commodity Futures Trading Commn. v. Walsh, 17 N.Y.3d 162 (2011) ......................................................................................... 54 Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449 (1995) ................................................................................... 36, 61 Cook v. Rockwell Int’l Corp., 755 F. Supp. 1468 (D. Colo. 1991) ............................................................... 24, 46 {00014810} v Covington v. Walker, 3 N.Y.3d 287 (2004) ........................................................................................... 37 Dailey v. New York, 170 A.D. 267 (1st Dept. 1915), affd 218 N.Y. 665 (1916) ............................. 4, 33 Dangler v. Town of Whitestown, 241 A.D.2d 290 (4th Dept. 1998) ....................................................................... 12 Day v. NLO, 851 F. Supp. 869 (S.D. Ohio 1994) .................................................................... 15 Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995) ..................................................................................passim Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308 (1980) ......................................................................................... 42 Doe v. City of Stamford, 699 A.2d 52 (Conn. 1997) .................................................................................. 15 Donovan v. Philip Morris USA Inc., 2012 U.S. Dist. LEXIS 37974 (D. Mass. Mar. 21, 2012) ...........................passim Donovan v. Philip Morris USA Inc., 268 F.R.D. 1 (D. Mass. 2010) ......................................................................passim Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009) ......................................................................passim Dreikausen v. Zoning Bd. of Appeals, 98 N.Y.2d 165 (2002) ......................................................................................... 29 Dunham v. Canisteo, 303 N.Y. 498 (1952) ........................................................................................... 42 Fahey v A.O. Smith Corp., 77 A.D.3d 612 (2d Dept. 2010) .................................................................... 42, 66 Fox v. Tedesco, 15 A.D.3d 538 (2d Dept. 2005) .................................................................... 42, 44 {00014810} vi Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984)(Washington D.C. law) ...............................passim Fuentes v. Bd. of Educ., 12 N.Y.3d 309 (2009) ......................................................................................... 54 Galyn v. Schwartz, 56 N.Y.2d 969 (1982) ......................................................................................... 29 Gerardi v. Nuclear Utility Services, Inc., 149 Misc. 2d 657 (Sup. Ct. West. Co. 1991) ...................................................... 12 Gibbs v. E.I. DuPont de Nemours & Co., 876 F. Supp. 475 (W.D.N.Y. 1995) .................................................................... 12 Gonzalez v. Delta Int’l Mach. Corp., 307 A.D.2d 1020 (2d Dept. 2003) ...................................................................... 43 Hall v. United Parcel Service, Inc., 76 N.Y.2d 27 (1990) ........................................................................................... 12 Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993) ................................................................. 14, 15, 25, 34 Harvey v. Metro Life Ins. Co., 34 A.D.3d 364 (1st Dept. 2006) ......................................................................... 38 Hitt v. Stephens, 675 N.E.2d 275 (Ill. App. Ct. 4th Dist. 1996) .................................................... 35 Interstate Cigar Co. v. United States, 928 F.2d 221 (7th Cir. 1991) .............................................................................. 33 Israel v. Chabra, 12 N.Y.3d 158 (2009) ......................................................................................... 54 Jacobus v. Colgate, 217 N.Y. 235 (1916) ..................................................................................... 59, 60 Jensen v. Gen. Elec. Co., 82 N.Y.2d 77 (1993) ..................................................................................... 37, 62 {00014810} vii Kaufman v. Cohen, 307 A.D.2d 113 (1st Dept. 2003) ....................................................................... 34 King v St. Barnabas Hosp., 87 A.D.3d 238 (1st Dept. 2011) ......................................................................... 43 Kriz v. Schum, 75 N.Y.2d 25 (1989) ........................................................................................... 42 LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701 (1995) ..................................................................................passim Lamping v. American Home Products, 2000 Mont. Dist. LEXIS 2580 (Mont. Dist. Ct. 2000) ................................passim Lopez v. Swyer, 300 A.2d 563 (N.J. 1973) ................................................................................... 35 Lowe v. Philip Morris USA, Inc., 183 P.3d 181 (Or. 2008) ..................................................................................... 18 Madden v. Creative Servs., 84 N.Y.2d 738 (1995) ......................................................................................... 12 Marden v. Maurice Villency, Inc., 29 A.D.3d 402 (1st Dept. 2006) ......................................................................... 43 Martin v. Edwards Laboratories, Div. of American Hospital Supply Corp., 60 N.Y.2d 417 (1983) ................................................................................... 30, 58 McGrath v. C.T. Sherer Co., 195 N.E. 913 (1935) ........................................................................................... 33 McKenna v. Levy, 182 A.D. 678 (2d Dept. 1918) ............................................................................ 10 Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997) .....................................................................................passim Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007) ......................................................................... 15, 24 {00014810} viii MRI Broadway Rental, Inc. v. United States Mineral Prods. Co., 92 N.Y.2d 421 (1998) ......................................................................................... 62 Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980) ......................................................................................... 42 Norfolk & Western Ry. v. Ayers, 538 U.S. 135 (2003) ............................................................................ 3, 25, 26, 27 Ortega v. City of New York, 9 N.Y.3d 69 (2007) ............................................................................................. 12 Osarczuk v. Associated Universities, Inc., 36 A.D.3d 872 (2d Dept. 2007) .......................................................................... 12 In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990) ............................................................................... 15 Pavlou v. City of New York, 21 A.D.3d 74 (1st Dept 2005), aff’d, 8 N.Y.3d 961 (2007) ............................... 43 Pay Tel Sys., Inc. v. Seiscor Technologies, Inc., 850 F. Supp. 276 (S.D.N.Y. 1994) ..................................................................... 65 Petito v. A.H. Robins Co., 750 So. 2d 103 (Fla. Dist. Ct. App. 3d Dist. 1999) .....................................passim Pieczonka v. Pullman Co., 89 F.2d 353 (2d Cir. 1937) ........................................................................... 37, 61 Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993) .............................................................................passim Prager v. Motor Vehicle Acci. Indemnification Corp., 53 N.Y.2d 854 (1981) ......................................................................................... 42 Redland Soccer Club v. Dep’t of the Army, 696 A.2d 137 (Pa. 1997) ......................................................................... 13, 14, 25 In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61 (S.D.N.Y. 2002) .......................................................................... 47 {00014810} ix Sabetay v. Sterling Drug, 69 N.Y.2d 329 (1987) ......................................................................................... 13 Sadowski v. Long Island R. Co., 292 N.Y. 448 (1944) ..................................................................................... 37, 61 Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287 (1936) ..................................................................................... 36, 61 Shannon v. MTA Metro-North R.R., 269 A.D.2d 218 (1st Dept. 2000) ....................................................................... 38 Sheehan v. New York, 40 N.Y.2d 496 (1976) ......................................................................................... 42 Snyder v. Town Insulation, 81 N.Y.2d 429 (1993) ................................................................................... 37, 62 Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F.Supp. 2d 833 (N.D. Ill. 2008) ............................................................. 21, 24 Stoleson v. United States, 629 F.2d 1265 (7th Cir. 1980) ............................................................................ 35 Strusburgh v. New York, 87 N.Y. 452 (1882) ....................................................................................... 10, 11 Sutton v. St. Jude med. S.C., Inc., 419 F.3d 568 (6th Cir. 2006) .............................................................................. 25 United States. v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) .......................................................................... 7 Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983) ......................................................................................... 42 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (U.S. 2011) ........................................... 17, 18 Walker v. Sheldon, 10 N.Y.2d 401 (1961) ......................................................................................... 10 {00014810} x In re Waltemade, 1975 N.Y. LEXIS 2421 (N.Y. Jud. Ct. Dec. 1, 1975) ........................................ 10 Williams v. Supreme Council American Legion of Honor, 80 A.D. 402 (2d Dept. 1903) .............................................................................. 10 Statutes 28 U.S.C. 1332(d) .................................................................................................... 16 28 U.S.C. § 1332 ........................................................................................................ 6 Mass. Gen. Laws ch. 93A ........................................................................................ 41 N.Y. U.C.C. § 2-316(2) ............................................................................................ 65 New York, Book 29, Judiciary Law [1969 ed.] ....................................................... 10 U.C.C. N.Y. 2-314 ................................................................................................... 66 Other Authorities 26 CFR 54.9815-1251T ........................................................................................... 19 29 CFR 2590.715-1251 ............................................................................................ 19 45 CFR 147.140 ....................................................................................................... 19 75 FR 34538 ............................................................................................................. 19 C.P.L.R. § 214-c(2) .................................................................................................. 62 C.P.L.R. Article 9 ....................................................................................................... 5 C.P.L.R. § 213(1) ............................................................................................... 34, 69 C.P.L.R. § 214(5) ..................................................................................................... 34 C.P.L.R. § 214-c ....................................................................................................... 37 C.P.L.R. § 214-c(2) .................................................................................................. 37 C.P.L.R. § 214-c(4) .............................................................................................. 5, 34 C.P.L.R. § 901(5) ..................................................................................................... 51 {00014810} xi C.P.L.R. § 901(a)(1) ................................................................................................. 51 C.P.L.R. § 901(a)(2) ................................................................................................. 51 C.P.L.R. § 901(a)(3) ................................................................................................. 51 C.P.L.R. § 901 et seq. ................................................................................................ 9 C.P.L.R. § 902(5) ..................................................................................................... 52 C.P.L.R. § 909 .......................................................................................................... 50 Donovan II, 268 F.R.D at 16-17 .............................................................................. 48 Fed. R. Civ. P. 23 ................................................................................................... 5, 9 Fed. R. Civ. P. 23(a) ................................................................................................. 52 Fed. R. Civ. P. 23(a)(1) ............................................................................................ 51 Fed. R. Civ. P. 23(a)(2) ............................................................................................ 51 Fed. R. Civ. P. 23(a)(3) ............................................................................................ 51 Fed. R. Civ. P. 23(a)(4) ............................................................................................ 51 Fed. R. Civ. P. 23 and Article 9 ............................................................................... 51 Fed. R. Civ. P. 23(b)(2) ...................................................................................... 39, 52 Fed. R. Civ. P. 23(b)(3) ...................................................................................... 39, 51 Fed. R. Civ. P. 23(b)(3)(D) ...................................................................................... 52 {00014810} 1 INTRODUCTION Defendant-Respondent Philip Morris USA, Inc.’s (“Philip Morris’”) Brief suffers from three critical flaws. First, it fails to address the equitable merits of Plaintiff-Appellants’ (“Plaintiffs’”) claims. Nowhere does Philip Morris address Plaintiffs’ showing respecting: 1) its profound and continuing misconduct in selling a lethal and addictive product, 2) the harmful effects of its malfeasance on Plaintiffs and the class they seek to represent, 3) that LDCT surveillance at last provides Plaintiffs with a method for detecting lung cancer in its earliest stages, and 4) that this action, if successful, will save hundreds if not thousands of lives. Philip Morris simply ignores the compelling equitable bases for this action. Second, Philip Morris’ “public policy” arguments do not bear scrutiny. They amount to unsupported and unworthy scare tactics addressed to imagined fears and prejudices. Thus, Philip Morris predicts, without evidence, and in the face of contrary experience, that “a flood of claims” will “overwhelm” this State’s courts. DB1 at 2. This overlooks the fact that, for nearly thirty years, New York’s Appellate Divisions and federal courts sitting in diversity have allowed medical surveillance actions to proceed without dire consequence. The same may be said of Massachusetts and numerous other states which allow monitoring. In that regard, Philip Morris is the Defendant in Donovan v. 1 References prefixed “DB,” “PB,” and “A” are to the Brief of Defendant- Respondent, Plaintiff-Appellants’ Opening Brief, and the Appendix respectively. {00014810} 2 Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009), as well as this action.2 Nonetheless, it is unable to document any horrors visited on that Commonwealth as a consequence of the Supreme Judicial Court of Massachusetts’ supposed folly four years ago. The third flaw in Philip Morris’ Brief stems from its repeated mischaracterizations of the record and applicable legal authorities. Among its misstatements are the following: • Arguing that Plaintiffs seek to “circumvent” New York’s “physical injury requirement.” DB at 13-15. Untrue. First, no such requirement presently exists in monitoring actions. Second, the record is that each and every class member with a twenty plus pack-year smoking history has suffered physical injury to the tissues and structures of his and her lungs. Thus, this is not a case where the harm occasioned is speculative or uncertain. A109 ¶194; A170-171 ¶¶9-14; A384 ¶73; A137-138 ¶¶16-18; A172-173 ¶¶18-20. Thus, as set forth in Plaintiffs’ Opening Brief, the viability of a surveillance claim in which “no physical injury” exists can await another day (PB at 38, n.33). • Asserting that monitoring today might bar injury claims in the future. DB at 10. Incorrect. Like the courts of most states, e.g., Petito v. A.H. Robins Co., 750 So. 2d 103, 106 (Fla. Dist. Ct. App. 3d Dist. 1999); Ayers v. Township of Jackson, 525 A.2d 287, 300-301 (N.J. 1987), New York’s jurists have followed a two-injury rule. Thus, a Plaintiff, wrongfully exposed to a substance capable of producing more than one disease, may bring an initial suit for e.g., asbestosis in year one and another for mesothelioma ten years later. Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 538 (S.D.N.Y. 2007)(citing Braune v. Abbott Labs., 895 F. Supp. 530, 555 (E.D.N.Y. 2 As related in Plaintiffs’ Opening Brief the Donovan action, which mirrors the instant case, has generated three decisions of note, Donovan v. Philip Morris USA Inc., 914 N.E.2d 891 (Mass. 2009)(“Donovan I”), Donovan v. Philip Morris USA Inc., 268 F.R.D. 1 (D. Mass. 2010)(“Donovan II”), and Donovan v. Philip Morris USA Inc., 2012 U.S. Dist. LEXIS 37974 (D. Mass. Mar. 21, 2012)(“Donovan III”). {00014810} 3 1995); Fusaro v. Porter-Hayden Co., 145 Misc. 2d 911 (N.Y. Sup. Ct. 1989), aff’d, 170 A.D.2d 239 (1st Dept. 1991)). • Speculating that surveillance claims today will diminish the future recoveries of personal injury or wrongful death claimants. DB at 10. Unsupported and farfetched. Unlike defendants in the asbestos context underlying its authorities, Philip Morris continues to earn extraordinary profits from the sale of cigarettes. It makes no claim that it is in or on the brink of bankruptcy. Also unlike the asbestos context, only a small fraction of Philip Morris’ customers’ personal representatives commence wrongful death suits, and fewer still prevail. Additionally, the notion that Philip Morris should escape responsibility today for medical tests necessitated by its misconduct because theoretically it might face liabilities at some later point is a radical and unwarranted departure from New York law. • Arguing that the United States Supreme Court rejected medical surveillance. DB at 27. Untrue. In Norfolk & Western Ry. v. Ayers, 538 U.S. 135 (2003)(“Norfolk & Western”), and Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997)(“Metro-North”), the Supreme Court declined to permit exposed but uninjured individuals money damages for surveillance, but allowed equitable surveillance claims for “uninjured” plaintiffs, and claims of all sorts for those whose lungs had suffered harm. Philip Morris also overlooks that those decisions were reached in the circumstances of asbestos litigation, and at a time when surveillance would have been senseless, because no proper screening method for asbestos- related disease (mesothelioma, lung cancer, and asbestosis) existed. The Supreme Court was also considering a federal statute, the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., and not state common law liability. Finally, and uniquely in the asbestos context, unprecedented volumes of claims had bankrupted numerous manufacturers, creating significant concerns about the claims of future cancer victims. None of these circumstances apply in this case, or generally. • Implying that a majority of states have rejected medical monitoring. DB at 27-31. Untrue. Plaintiffs know of no state that rejects surveillance claims outright. The main dividing line among the surveillance decisions concerns the presence or absence of physical harm as a predicate for such a claim. Because such injury exists in this case, that distinction is of no moment. {00014810} 4 • Suggesting that Plaintiffs seek to recover for “economic loss” and that such a recovery is only permitted in contract actions. DB at 14. Incorrect. Philip Morris ignores that this action sounds, inter alia, in breach of implied warranty. Furthermore, Plaintiffs do not seek to recover for consequential damages, such as lost business opportunities. They simply desire access to a proper surveillance program. Seeking to save one’s life is not a claim for economic loss. • Falsely claiming that New York has adopted “but for” causation. DB at 42- 47. Quite to the contrary, it is black letter law in New York that causation employs a “substantial factor” standard. “But for” causation has been repeatedly rejected as unsound. PB at 38, n.33. A host of precedents reaffirm that bedrock principle, which is also reflected in New York’s Civil Pattern Jury Instructions (“P.J.I.”) 2:70-2:71 and the Commentary thereto. • Characterizing LDCT surveillance program as merely Plaintiffs’ “desired” remedy, and implying that Plaintiffs might have sought some other form of surveillance before 2006. DB at 11. Untrue. LDCT surveillance is Plaintiffs’ only remedy. As Philip Morris’ experts admitted, no efficacious form of surveillance existed prior to its advent. A57 ¶¶62-63; A145-146 ¶¶35-37; A204-208; A374 ¶¶9-10; A384-385 ¶¶77-78. • Arguing that Plaintiffs seek a legal or money damage remedy. DB at 39-40. Incorrect. As the District Court recognized, Plaintiffs seek an injunctive or equitable remedy. A66 ¶33; A354; A372 ¶2; A375 ¶19; A384-386 ¶¶75-82. The proofs demonstrate that only a properly administered program, with appropriate outreach, algorithms, quality control, and personnel will provide an adequate remedy. A159-164; A178-179. In arguing otherwise, Philip Morris cites no contrary evidence, and overlooks this State’s law respecting what constitutes an adequate remedy at law. See Dailey v. New York, 170 A.D. 267 (1st Dept. 1915)(“In order to deny one the relief which a court of equity can give, it is not in all cases sufficient that there be a remedy at law. The remedy must be plain and adequate, and as certain, prompt, complete and efficient to attain the ends of justice and its prompt administration as the remedy in equity.”)(citations omitted), affd 218 N.Y. 665 (1916). Notably, Philip Morris’ argument has been twice rejected by the federal judiciary. Donovan III, 2012 U.S. Dist. LEXIS 37974, *51-56; Donovan II, 268 F.R.D. at 22-28. {00014810} 5 • Claiming that accrual rules looking to the availability of a remedy are “unworkable” or unrecognized. DB at 53-56. Untrue. Accrual rules looking to when a scientific or medical “fact” is established or knowable have been broadly adopted, and are reflected in CPLR § 214-c(4). Asking fact-finders to ascertain when a surveillance technique became consistent with standards of care is not especially challenging. Plaintiffs’ approach is consistent with jurisprudence in New York and nationwide, including Massachusetts. • Arguing that the existence of a remedy has nothing to do with accrual. DB at 55. Untrue. A defendant’s incapacity to satisfy a judgment is entirely different from the absence of any remedy at all. Here, because no efficacious surveillance existed before suit was commenced, a monitoring action could not be pleaded in good faith and would have been wasteful of the party’s and court’s resources. In contrast, money damage claims against impecunious defendants can be pleaded and prosecuted. • Asserting that this Court must restrict its analysis to the precise questions formulated by the Second Circuit. DB at 63. Incorrect. The Second Circuit expressly invited this Court to expand its analysis in any manner that this Court deems proper. A746. • Repeatedly imploring this Court not to “create” or “invent” a medical monitoring cause of action. E.g., DB at 12, 51. This language vainly attempts to mask the fact that such claims have been recognized in this State for almost thirty years, in an unbroken line of decisions from the Appellate Divisions and multiple federal courts sitting in diversity. Allowing Plaintiffs’ actions to proceed hardly requires creation of something that heretofore did not exist. Rather, it calls for the consideration and endorsement or clarification of a considerable body of preexisting lower court authority. • Predicting that permitting medical surveillance claims to proceed forward on the facts presented will produce “uncabined” liability to boundless classes of claimants. DB at 18, 39. This ignores that the class certification processes under Fed. R. Civ. P. 23 (and CPLR Article 9) provide protections against the certification of overbroad or boundless classes. There is also no empirical evidence underlying Philip Morris’ overheated rhetoric. Finally, Philip Morris ignores the fact that by consciously and wrongfully continuing to sell Marlboros, in the face of a consensus that they are deadly and {00014810} 6 addictive, it imperils the lives of millions of customers, and therefore invites liability. • Suggesting that New York’s court system will become a magnet for out-of- state claims. DB at 21. This ignores the effect of federal class action legislation, 28 U.S.C. § 1332, which effectively consigns to the federal courts any class action commenced by out-of-state plaintiffs or putative classes. This argument further ignores both choice of law rules which could prevent foreign claimants suffering harm elsewhere from invoking New York law, and forum non conveniens rules applicable to claims without a proper connection to this State. In sum, Philip Morris’ submission neglects to deal with a significant portion of Plaintiffs’ claims. Those arguments it does advance contain a host of errors. It shall be the purpose of this Reply Brief to further demonstrate that this Court should recognize an equitable medical surveillance claim. It will likewise demonstrate that the “elements” of a medical monitoring action Philip Morris prefers are unsound and inconsistent with New York law, and that its accrual analysis is devoid of merit. ARGUMENT POINT I PHILIP MORRIS FAILS TO ADDRESS THE COMPELLING EQUITABLE MERITS OF PLAINTIFFS’ CLAIMS. Philip Morris primarily argues for the outright rejection of medical monitoring. It posits that no matter how profoundly it misbehaved, no matter how unequivocal the evidence showing that Marlboros place Plaintiffs at risk for {00014810} 7 developing lung cancer, no matter how lethal that disease is, no matter how efficacious LDCT medical surveillance is, and no matter how many lives it can save, New York should nonetheless bar medical surveillance. DB at 12-38. In taking that position, Philip Morris simply fails to engage with Plaintiffs’ now uncontradicted showing of the equitable merits of their claim. As demonstrated, these claims are extraordinarily compelling. PB at 7-31. Philip Morris could have utilized a multitude of design improvements to reduce Marlboros’ excessive carcinogenicity, including increasing “resistance to draw,” utilizing a less carcinogenic “filler” tobacco than Burley tobacco, reducing the protein content of tobacco, avoiding its over-fertilization, reducing or eliminating the use of flue curing, and reducing the use of sugars in Marlboro cigarettes. A260- 275. Motivated by profit, it declined to take those steps. PB at 27-30. Philip Morris likewise concealed its product’s health effects, both in false public statements, and through spending billions of dollars on deceptive media campaigns. PB at 9-14; United States. v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 180, 272-273, 290, 292 (D.D.C. 2006). Decades after the scientific community achieved consensus, Philip Morris finally acknowledged that its products cause cancer. Nonetheless, it continues to market a lethal and addictive product, without incorporating changes which could dramatically diminish their carcinogenicity. A272; PB at 27-30. {00014810} 8 Philip Morris does not suggest otherwise. Nor does it make any attempt to exonerate its fifty-seven years of deliberate disregard for the health and safety of its customers, in order to secure lavish profits and protect its flagship Marlboro brand. Nor does it challenge the reality that, as a consequence of its misbehavior, hundreds of thousands have died terrible and untimely deaths. Nor is any attempt is made to dispute that Plaintiffs and members of the class they seek to represent have all suffered damage to their lungs, and are all at high risk for developing lung cancer. A109 ¶194; A170-171 ¶¶9-14; A384 ¶73; A137-138 ¶¶16-18; A172-173 ¶¶18-20. Nor does Philip Morris dispute that Plaintiffs were ignorant of its capacity to manufacture cigarettes vastly less carcinogenic, and equally “pleasurable.” Similarly, no effort is made to dispute the extreme addictive propensities of Marlboro cigarettes (PB at 2-3, 9-11), or evidence showing that LDCT, if utilized, will save the lives of thousands of its victims (PB at 3-4, 21-24). Consequently, any equitable balancing must begin with the proposition that Plaintiffs have made out as compelling an equitable case for surveillance as might be imagined. This is particularly true where, as here, the federal courts have concluded that legal relief is unavailable. Accordingly, for this Court to determine, after balancing the equities, that these claims should be disallowed, Philip Morris would need to come forward with {00014810} 9 a showing of extraordinary unfairness to it, which somehow outweighs the equities in Plaintiffs’ favor and warrants leaving them without a life-saving remedy. It has made no such showing. Notably absent from Defendant’s Brief is any suggestion that Philip Morris itself is entitled to the Court’s concern or sympathy. Nowhere does Philip Morris identify any excuses for its misconduct, or suggest that its ongoing conduct is justified or benign. Instead, Philip Morris tries to misdirect the Court and instill fear. Thus, it speculates about the effect a ruling might have on more sympathetic defendants, who could become impecunious, and raises the specter of surveillance cases unlikely to be brought for a host of practical reasons (e.g., suits concerning Styrofoam cups or processed foods). DB at 19-20. Those hypothetical defendants are not the subject of this suit or the Second Circuit’s order. It certified questions on a tobacco company, Philip Morris, and the most deadly product ever marketed, cigarettes. A746. If and when meritless surveillance cases are brought, courts are well able to separate the valid from the specious. They have many tested tools with which to do so, including class certification procedures of Fed. R. Civ. P. 23, and CPLR § 901 et seq. For present purposes, with respect to the record presented, Philip Morris simply ignores the compelling equitable bases underlying this action. {00014810} 10 POINT II POLICY CONSIDERATIONS FAVOR THE RECOGNITION OF EQUITABLE SURVEILLANCE CLAIMS. Philip Morris is silent in the face of a powerful showing that its wrongdoing caused Plaintiffs’ need for surveillance. In Philip Morris’ “weighing” of policy concerns, its own misconduct, the Plaintiffs’ health, and the capacity of LDCT surveillance to save lives do not even reach the scale. That is improper. Courts exist to promote justice. In a civil context, tort liability serves to deter misconduct, and provide redress to citizens who have been grievously wronged. See Walker v. Sheldon, 10 N.Y.2d 401, 405-406 (1961); In re Waltemade, 1975 N.Y. LEXIS 2421, *45 (N.Y. Jud. Ct. Dec. 1, 1975)(“Courts exist to promote justice[.]”)(quoting Canons of Judicial Ethics (McKinney’s Cons. Laws of New York, Book 29, Judiciary Law [1969 ed.]). It is an ancient maxim that a court of “equity will not suffer a wrong without a remedy.” McKenna v. Levy, 182 A.D. 678, 689 (2d Dept. 1918); Williams v. Supreme Council American Legion of Honor, 80 A.D. 402, 406 (2d Dept. 1903). Equitable relief exists in order to prevent the “absolute failure of justice,” which occurs when a wronged party is left without a remedy. Strusburgh v. New York, 87 N.Y. 452, 456 (1882). Where, as here, the Defendant’s misconduct causes severe harm, and the opportunity exists to save lives and alleviate suffering, countervailing public policy {00014810} 11 considerations must be extraordinarily compelling to justify such an “absolute failure of justice.” Id. Philip Morris’ articulated policy factors do not even come close. In effect, Philip Morris advances two sets of arguments. One concerns timeliness, which is addressed in Point IV infra. The other concerns the wisdom of continued recognition of medical surveillance. DB at 12-38. In that connection, Philip Morris’ argument begins with, and rests upon, a distortion of reality. Throughout its Brief, Philip Morris asserts that Plaintiffs are asking the Court to “invent” or “create” surveillance, and cites the supposed novelty of medical monitoring as a basis for deference to the Legislature. DB at 12, 51. Through those linguistic acrobatics, Philip Morris attempts to obfuscate the true state of affairs. That effort fails. Medical monitoring has been a part of New York law for almost three decades, albeit one addressed at the Appellate Division and trial court level. Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 137 (4th Dept 1984). Like Askey, innumerable courts in this State, or applying its law, have recognized surveillance claims to proceed, unswayed by Philip Morris’ policy arguments. See Becklev v. United States, 1995 U.S. Dist. LEXIS 14599, *11 (S.D.N.Y. Oct. 5, 1995)(“In New York, courts recognize a separate cause of action, with a relaxed standard of proof, for medical monitoring expenses due to exposure to toxic {00014810} 12 chemicals when the plaintiff cannot show with reasonable certainty that he will contract a disease as a result of the exposure.”). See also, e.g., Abbatiello v. Monsanto Co., 522 F.Supp.2d 524, 538 (S.D.N.Y. 2007); Gibbs v. E.I. DuPont de Nemours & Co., 876 F. Supp. 475, 479 (W.D.N.Y. 1995); Baity v General Elec. Co., 86 A.D.3d 948, 950 (4th Dept. 2011); Osarczuk v. Associated Universities, Inc., 36 A.D.3d 872, 877 (2d Dept. 2007); Dangler v. Town of Whitestown, 241 A.D.2d 290, 294 (4th Dept. 1998); Acevedo v. Consolidated Edison Co., 189 A.D.2d 497, 502 (1st Dept. 1993); Gerardi v. Nuclear Utility Services, Inc., 149 Misc. 2d 657, 657-59 (Sup. Ct. West. Co. 1991). None of those courts favorably entertained the idea that surveillance is best addressed by the Legislature. Their decisions belie Philip Morris’ theory that medical surveillance is novel, and its related argument that a ruling from this Court would have “disastrous policy consequences.” DB at 12.3 3 Unsurprisingly, the cases Philip Morris cites in support of its argument that medical monitoring “conflicts with this Court’s precedents” are entirely inapposite, and do not remotely support its claim. DB at 12. See, e.g., Ortega v. City of New York, 9 N.Y.3d 69, 74, 80 (2007)(declining to recognize third-party negligent spoliation tort where the plaintiff sued the City rather than the tortfeasor, and other legal remedies were available to the plaintiff through contempt proceedings); Madden v. Creative Servs., 84 N.Y.2d 738, 747 (1995)(holding, on facts presented, that intruder’s unauthorized inspection of client’s documents in lawyer’s office did not give rise to a cause of action by the client against the intruder for violation of the attorney-client privilege); Hall v. United Parcel Service, Inc., 76 N.Y.2d 27, 32-35 (1990)(holding that subject of lie detector test could not sue party who conducted the test; emphasizing that “if plaintiff had sustained physical injury from the test rather than … reputational injury … there would be no question of his right {00014810} 13 In the three decades that have elapsed since Askey was issued, New York’s Legislature also has not seen fit to reverse that decision. Nor has the Legislature modified Askey, or any surveillance decisions following it. That inactivity is noteworthy, since Askey was hardly an obscure decision. It has been cited well over two hundred times, in scholarly articles, treatises, and several dozen opinions in this State alone. Legislative silence therefore suggests approval of the judicially- fashioned state of affairs. Philip Morris’ assertion that courts lack the competence to address misconduct resulting in an increased risk of harm is likewise unpersuasive. Courts following Askey have recognized that medical monitoring is proper, and that jurists are suited to fashion and administer it as a matter of experience and training. As the Supreme Court of New Jersey held in a seminal decision, fashioning a fund to provide medical monitoring to injured parties is “a highly appropriate exercise of the Court’s equitable powers.” Ayers, 525 A.2d at 314. See, e.g., Burns v. Jaquays Mining Corp., 752 P.2d 28, 34 (Ariz. Ct. App. 1987); Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 825, n.28 (Cal. 1993); Petito v. A.H. Robins Co., 750 So. 2d 103, 106 (Fla. Dist. Ct. App. 1999); Redland Soccer Club v. Dep’t of the to maintain a cause of action against the examiner”); Sabetay v. Sterling Drug, 69 N.Y.2d 329, 331 (1987)(corporate policy manual’s statement did not create enforceable promise not to terminate employee). {00014810} 14 Army, 696 A.2d 137, 189 n.6 (Pa. 1997); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 982 (Utah 1993). That this Court has not been called upon or seen fit to address medical surveillance in the twenty-nine years since Askey underscores the broad consensus that has developed at the trial and intermediate appellate levels. Accordingly, while it is surely the function of this Court to have the last word respecting the contours and content of New York law, frequently and properly, as here, it is the task of the lower courts to consider issues like the availability of medical monitoring claims, and blaze the trail. With that background in mind, Philip Morris’ argument against surveillance consists of four flawed components: a) the specter of an avalanche of litigation overwhelming New York’s courts, b) the specter of business entities being burdened by boundless liability, c) an argument that the medical surveillance necessitated by its malfeasance should be borne by taxpayers, and d) suggesting that medical monitoring be limited to “environmental” torts. These arguments are uniformly meritless. First, on an empirical level, medical surveillance claims have been permitted nationwide for decades. In addition to New York and Massachusetts, Donovan I, 914 N.E.2d at 891, they have proceeded, for instance, in New Jersey, Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987); Pennsylvania, Redland Soccer {00014810} 15 Club Inc. v. Dep’t of the Army, 696 A.2d 137 (1997); California, Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993); Arizona, Burns v. Jaquays Mining Corp., 752 P.2d at 33; Florida, Petito v. A.H. Robins Co., 750 So.2d at 106- 107, Missouri, Meyer v. Fluor Corp., 220 S.W.3d 712, 717 (Mo. 2007), Connecticut, Doe v. City of Stamford, 699 A.2d 52, 55 (Conn. 1997), Montana, Lamping v. American Home Products, 2000 Mont. Dist. LEXIS 2580, *14, 29 (Mont. Dist. Ct. 2000), and Utah, Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). Federal diversity courts have recognized this trend and permitted such actions. See, e.g, In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3d Cir. 1990)(Pennsylvania law); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984)(Washington D.C. law); Day v. NLO, 851 F. Supp. 869, 881 (S.D. Ohio 1994)(Ohio law); Bocook v. Ashland Oil, Inc., 819 F. Supp. 530, 537 (S.D.W. Va. 1993)(Kentucky law). Philip Morris cites no evidence in these jurisdictions to support its inflamed rhetoric. There is no reason to believe that this State’s continuing to permit surveillance will place a new or undue burden on its courts.4 4 In a vain attempt to mask widespread acceptance of medical monitoring, Philip Morris engages in selective number crunching, by utilizing artificial categories or limitations. Thus, it limits certain calculations to state Supreme Court decisions (DB at 28), omitting well reasoned trial and intermediate court decisions, e.g., Burns, supra, Petito, supra, and Lamping, supra and important federal decisions, {00014810} 16 Philip Morris’ prediction that New York will become a “magnet” for surveillance actions likewise overlooks important developments in federal law respecting class actions. 28 U.S.C. 1332(d) creates federal jurisdiction and the right of removal to federal courts for the vast majority of class actions. Accordingly, it is hardly surprising that the instant case is proceeding in the federal forum. Equally unavailing is the claim that permitting Plaintiffs’ medical monitoring claims to proceed would amount to the imposition of “limitless liability.” DB at 18-21. At bottom, Philip Morris’ “too big to fail” argument amounts to acknowledging that a tortfeasor will face suit in court if it harms a single person, but arguing that the same entity should be immune from suit as a matter of policy if it wrongfully imperils the health of thousands.5 such as Friends for All Children, Inc., supra. It also artificially limits calculations to decisions rendered after Metro-North, supra, thereby excluding such seminal decisions such as the decision of the New Jersey Supreme Court Ayers, supra, which has influenced jurists nationwide. DB at 28. Philip Morris likewise attempts to draw a sharp distinction between cases permitting medical monitoring as a cause of action, e.g., Donovan I, 914 N.E.2d at 891, and those which praise medical monitoring as fulfilling important policy goals, but deem it a form of relief. E.g., Potter, 863 P.2d at 822-823. These hair-splitting tactics are as transparent as they are unpersuasive. Ultimately, they serve only to underscore that Philip Morris cannot identify a single jurisdiction in which medical monitoring is barred outright. 5 Although it argues that medical monitoring claims would disserve its interests, Philip Morris notably does not attempt to claim unfair surprise. The reason is plain. At a minimum, Philip Morris has been on notice of the viability of medical monitoring claims since 1984, when Askey was decided. It was likewise plainly on notice that its misconduct would cause an increased risk of developing lung cancer. {00014810} 17 That skewed logic is unconvincing to say the least. The fact that Philip Morris harmed a large class of consumers does not diminish the needs of any member. Deterrence of misconduct that needlessly exposes large numbers of individuals to grave harm is also extremely important. Any claim by Philip Morris that it should be exonerated because it sold -- and continues to sell -- billions of cigarettes harming millions of customers is perverse. It is also incorrect to suggest that Plaintiffs seek liability without limit. In Donovan, experts for Plaintiffs and Philip Morris were able to calculate the certified class as possessing roughly forty thousand members. Their conclusions were similar. Such calculations can be readily achieved in this case. Thus, while a class of everyone who ever smoked a cigarette, or ever was exposed to second hand cigarette smoke might be vast, that is not remotely the present case. In any event, the problem of limitless classes, if they are presented, can be readily addressed in class certification contexts. It would be illogical and unjust to institute a blanket rule barring all equitable surveillance actions simply because a claim might one day arise involving an overreaching or ill-defined class. Compare Wal- Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (U.S. 2011)(holding that class certification was improper in Title VII discrimination action), with {00014810} 18 Donovan III, 2012 U.S. Dist. LEXIS 37974, at *101-102 (denying motion to decertify class in Massachusetts action after Dukes).6 Nor is there any merit to Philip Morris’ strained argument that this Court should reject medical monitoring because class members might one day obtain LDCT surveillance “for free” (DB at 10, 22-25). In so arguing, Philip Morris glosses over the fact that the United States Preventative Services Task Force’s (“USPSTF”) tentative recommendations, if finalized, would exclude a significant portion of the class.7 Philip Morris likewise ignores that the Affordable Care Act is 6 It is noteworthy that attempts to certify classes of smokers have failed when they were overbroad or sought limitless liability. See, e.g., Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998)(rejecting attempt to sue all cigarette manufacturers in a single class action without regard to product differences); Lowe v. Philip Morris USA, Inc., 183 P.3d 181 (Or. 2008)(rejecting claims on behalf of class with five pack-year smoking history, which did not allege that plaintiffs had suffered any present physical harm). Judge Gertner carefully considered such cases, including Barnes, in her class certification decision. As she recognized, the class in Donovan – and this case by extension – was properly tailored to a single brand, and individuals who were all at high risk of developing lung cancer, owing to their decades of smoking Marlboros. Donovan II, 268 F.R.D. at 8, 10-11, 17, 30. Thus, Philip Morris’ reference to earlier tobacco actions is misplaced. A fair reading of them reinforces that adequate protections already exist to safeguard against boundless liability. 7 Notably, the recommendations do not include persons between ages 50 and 54, or those who have smoked between twenty and thirty pack years. http://www.uspreventiveservicestaskforce.org/bulletins/lungcandrftbulletin.pdf (last visited September 30, 2013). Those parameters do not reflect a determination that such persons face substantially increased risk of developing lung cancer. Rather, the USPSTF is grappling with and informed by difficult policy questions concerning the costs of screening a large population of 50 year olds, and whether scarce social resources should be spent on lung cancer surveillance if that would detract from monies spent on e.g., early childhood nutrition or vaccination. Here, {00014810} 19 not in effect, faces ongoing challenges, and its full implementation has been delayed. It similarly overlooks that, should the Act take effect, numbers of Americans are expected to remain uninsured; “grandfathered” plans may avoid surveillance obligations, see 26 CFR 54.9815-1251T; 29 CFR 2590.715-1251; 45 CFR 147.140 (75 FR 34538, June 17, 2010); and many New Yorkers will still lack access to quality primary care physicians. http://www.nyc.gov/html/hhc/downloads/pdf/pcdc-report.pdf, p.2-7 (last visited September 30, 2013). Nor does it take into account the fact that having a named primary care physician does not ensure that class members will see qualified pulmonologists aware of newly developed forms of screening, and capable of administering surveillance in a proper fashion. Carefully evaluating these issues, the District of Massachusetts rightly rejected Philip Morris’ argument in 2012 that the Massachusetts plaintiffs had an adequate remedy at law. Donovan III, 2012 U.S. Dist. LEXIS 37974, at *37-56. Beyond that, Philip Morris’ argument ignores the critical fact that health care is not “free” for the insurer or the insured. Private insurance carries a significant cost for employers and insureds. Public plans, such as Medicare and Medicaid, are subsidized by taxpayers at significant cost. At bottom, Philip Morris no such conflict exists, since the question is whether Philip Morris should be made to bear the cost of its malfeasance. {00014810} 20 is suggesting that it should escape all responsibility for life-saving medical surveillance necessitated by its needlessly carcinogenic product because taxpayers might absorb certain costs deriving from its malfeasance. Any such argument does not withstand scrutiny. Nor is there any merit to Philip Morris’ fallback position, that medical surveillance claims should be limited to cases of environmental contamination. In so arguing, Philip Morris asserts that the policy concerns underlying medical monitoring rulings are inapplicable where a defective product has necessitated medical surveillance. DB at 32-34. That argument is unavailing. As detailed in Plaintiffs’ opening brief (PB at 49-52), medical monitoring claims promote the “important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease….” Potter, 863 P.2d at 824 (citations omitted). The smoke generated by Marlboro cigarettes is a toxic mixture of more than 4,000 chemicals, over 50 of which are known carcinogens. A260-261; A378- 379 ¶¶42-51. Plaintiffs’ exposure to those chemicals creates an enhanced risk of developing lung cancer. A109 ¶194; A170-171 ¶¶9-14; A384 ¶73; A137-138 ¶¶16- 18; A172-173 ¶¶18-20. Medical surveillance is no less essential because the hazardous chemicals were contained in a product, rather than in the water or air. Doubtless for that reason, courts have expressly permitted medical monitoring in {00014810} 21 cases arising from product defects. See, e.g., Friends for All Children, Inc., 746 F.2d at 816 (airplane); Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F.Supp. 2d 833, 836 (N.D. Ill. 2008)(lipstick containing lead); Donovan I, 914 N.E.2d at 891 (Marlboro cigarettes); Lamping, 2000 Mont. Dist. LEXIS 2580, at *14 (fen-phen prescription drugs); Petito, 750 So. 2d at 103 (same). The second policy consideration supporting medical monitoring is that allowing parties to recover the cost of this medical monitoring may serve an important role deterring misconduct. Potter, 863 P.2d at 824. Any claim that this factor is inapplicable to Philip Morris lacks merit. Philip Morris’ profound misconduct was driven by a desire to make profits. Like environmental offenders, its bad behavior produces cancer decades after exposure begins, creating concerns about the capacity of traditional tort law to serve as a deterrent. Ayers, 525 A.2d at 311-312 (citations omitted). As in the environmental context, permitting recovery for reasonable pre-symptom, medical-surveillance expenses would properly subject Philip Morris to “liability when proof of the causal connection between the tortious conduct and the plaintiffs’ exposure to chemicals is likely to be most readily available.” Id. at 312. That concern is particularly salient in the context of cigarettes. The life-span of a person diagnosed with lung cancer is tragically short. Those afflicted rarely live to testify at trial, let alone see a recovery. {00014810} 22 The third policy factor courts have cited is that “[t]he availability of a substantial remedy before the consequences of the plaintiffs’ exposure are manifest” can “have the beneficial effect of preventing or mitigating serious future illnesses and thus reduce the overall costs to the responsible parties.” Ayers, 525 A.2d at 312; Burns, 752 P.2d at 33. Once again, this argument is equally applicable to the products liability in general, and Marlboros in particular. Early detection of lung cancer can dramatically improve the prospects for successful treatment. In addition to benefiting the proposed class members, and society as a whole (which benefits from their increased longevity and productivity), reducing lung cancer mortality could diminish Philip Morris’ financial burden in litigating future wrongful death actions. Fourth, courts have recognized that “societal notions of fairness and elemental justice are better served by allowing recovery of medical monitoring costs. That is, it would be inequitable for an individual wrongfully exposed to dangerous toxins, but unable to prove that cancer or disease is likely, to have to pay the expense of medical monitoring when such intervention is clearly reasonable and necessary.” Potter, 863 P.2d at 824 (citations omitted). This factor is likewise germane in the context of a products action. Philip Morris aggressively marketed Marlboros to Plaintiffs and the class they seek to represent. It misled Plaintiffs and lied to the public at large about their hazardous properties, and {00014810} 23 handsomely profited when the Plaintiffs were unable to overcome their addiction. Like the majority of the class they seek to represent, Plaintiffs started smoking as children, when they were particularly vulnerable to Philip Morris’ deceptive conduct. A297; A314; A336.8 Although Philip Morris had the capacity to design safer cigarettes, it sold lethal and nicotine-laden Marlboros, with full knowledge that addicted consumers would find it extremely difficult to quit. A260-275. On those facts, Philip Morris is in no position to argue that its customers are somehow undeserving of an equitable surveillance remedy. In short, a review of the pertinent policy considerations refutes both Philip Morris’ argument against medical monitoring, and its bid to limit medical monitoring to environmental contexts. POINT III PLAINTIFFS HAVE STATED A CLAIM FOR MEDICAL MONITORING REGARDLESS OF WHETHER PHYSICAL INJURY IS REQUIRED. In this case, actual physical injury exists. No one can smoke a pack a day of Marlboros for twenty or more years (a minimum of 146,000 cigarettes), and pass their fiftieth birthday, without suffering actual physical injury to the cells, tissues and function of his or her lungs. A109 ¶194; A170-171 ¶¶9-14; A384 ¶73; A137- 138 ¶¶16-18; A172-173 ¶¶18-20. 8 http://www.surgeongeneral.gov/library/reports/preventing-youth-tobacco- use/exec-summary.pdf, at p.7 (last visited September 30, 2013). {00014810} 24 Accordingly, the question of whether or not physical injury is a necessary predicate for a medical surveillance cause of action is not presented. If it is necessary, it exists. If it is not necessary, it nonetheless exists. Philip Morris advocates a requirement of what it calls “manifest” injury. DB at 13-15. By this, it presumably means either symptomatic or diagnosed injury. The illogic of this position is self-evident. The very purpose of medical surveillance is to address the problem of latent or occult disease. A latent disease produces no symptoms. For this reason, the Supreme Court of Missouri wisely observed, “[a] physical injury requirement is inconsistent with the reality of latent injury and with the fact that the purpose of medical monitoring is to facilitate the early diagnosis and treatment of latent injuries caused by exposure to toxins. In short, a physical injury requirement essentially extinguishes the claim and bars the plaintiff from a full recovery.” Meyer v. Flour Corp., 220 S.W.3d 712, 718 (Mo. 2007). As Philip Morris is constrained to admit, many States have already concluded that no physical injury requirement should be required in medical surveillance actions. See, e.g. Burns, 752 P.2d at 33; Potter, 863 P.2d at 823 (citing Friends For All Children, Inc., 746 F.2d at 816); Cook v. Rockwell Int’l Corp., 755 F. Supp. 1468, 1477 (D. Colo. 1991); Petito, 750 So.2d at 106-107; Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F.Supp. 2d 833, 836 (N.D. Ill. 2008); {00014810} 25 Lamping, 2000 Mont. Dist. LEXIS 2580, at *12-13; Ayers, 525 A.2d at 312-313; Redland Soccer Club, Inc., 696 A.2d at 145-146; Sutton v. St. Jude med. S.C., Inc., 419 F.3d 568, 576, n.7 (6th Cir. 2006); Hansen, 858 P.2d at 979. Insofar as physical injury is concerned, it is irrational to require, as Philip Morris proposes, that the condition for which surveillance is sought be “manifest” before surveillance may be asserted as either a claim or a remedy. An unfortunate individual who has become symptomatic with lung cancer (e.g., spitting up blood, severely short of breath, experiencing pronounced weight loss) needs many things. Medical surveillance is not one of them. Philip Morris’ manifest injury argument also misreads the Supreme Court’s decisions in Metro-North, supra, 521 U.S. at 424, and Norfolk & Western, supra, 538 U.S. at 135. Those cases arose under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.S. § 51 et seq., and concerned workers exposed to asbestos. In Metro-North, workers without evidence of bodily harm or symptoms sought to recover for emotional distress and a lump sum cash award to pay for medical surveillance. 521 U.S. at 426. In ruling against the plaintiffs, the majority pointed out that cases which permitted recovery of a monitoring remedy without proof of injury generally limited those recoveries to equitable or injunctive decrees. Id. at 440 (citing Ayers, 525 A.2d at 314; Hansen, 858 P.2d at 982; Potter, 863 P.2d at 825 n.28; Burns, 752 P.2d at 34. Justice Ginsberg, writing for the minority, would {00014810} 26 have allowed a lump sum award for medical surveillance in Metro-North, even for an exposed but uninjured population. However, and of great significance here, she also observed that the majority decision left those “non-injured” claimants at liberty to seek an equitable remedy. 521 U.S. at 455-456 (“Buckley may replead a claim for relief and recover medical monitoring, but he must receive that relief in a form other than a lump sum”). In Norfolk & Western, the Supreme Court revisited FELA in the context of railroad workers exposed to asbestos who developed asbestosis and sought to recover for mental anguish associated with the fear of developing a different disease, cancer. 538 U.S. at 140. Justice Ginsberg, now writing for the Court, upheld the plaintiffs’ cause of action. Thus, the Court limited the effect of Metro- North to “exposure only” circumstances. See id. at 148, 156 (citing with approval the language of Restatement (Second) of Torts, § 456, providing that “‘[i]f the actor’s negligent conduct has caused any bodily injury to another as to make him liable for it, the actor is also subject to liability for (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct that causes it.’”)(emphasis in opinion). In this case, Plaintiffs were not merely exposed to cigarette smoke. The uncontroverted evidence is that they also suffered bodily harm to the tissues and cells of their lungs. A109 ¶194; A170-171 ¶¶9-14; A384 ¶73; A137-138 ¶¶16-18; {00014810} 27 A172-173 ¶¶18-20. Just as asbestosis in Norfolk & Western is a progressive disease of the lungs which usually occurs after decades of exposure and tissue damage, Marlboro smoke similarly damages the lungs of those heavy smokers meeting the class definition. A109 ¶194; A170-171 ¶¶9-14; A384 ¶73. In sum, an accurate reading of Metro-North and Norfolk & Western reveals that the Supreme Court, given the equitable nature of the remedy sought and the evidence of bodily injury in the present case, would uphold surveillance (or indeed other types of claims) particularly in a non-asbestos context.9 In the final analysis, the role, if any, of “injury” in medical surveillance claims simply underscores the virtue of having a standalone surveillance claim as part of our jurisprudence. The classic paradigm of personal injury litigation (breach of duty, proximate causation, personal injury, legal money damages) does not comfortably fit into an equitable medical surveillance framework. Enhanced risk is not an “injury” as that concept is typically employed. Nor are money damages appropriate for an individual without symptoms, pain and suffering, lost wages, disability, or emotional distress. Because of these “disconnects,” courts without a 9 It should not be forgotten that the unique litigation “crisis” imposed by the asbestos litigation, resulting in bankruptcies and corresponding risk that those ultimately developing cancer would receive no recovery, weighed heavily on the Court’s thinking, See Norfolk & Western, 538 U.S. at 186 (Breyer J., concurring in part, dissenting in part). Such considerations do not apply to the tobacco industry. {00014810} 28 discrete cause of action are obliged to struggle trying to fit square pegs (e.g., accrual, “injury”) into round holes. In surveillance contexts, there will be breaches of duty. There will be toxic insult to the body, which may or may not produce immediate bodily harm, but which does produce elevated risk of developing a latent or occult disease in the future. There must exist some efficacious form of surveillance, an element unnecessary in a personal injury action. Typically, there will not be conscious pain and suffering, lost wages, disability, or any of the elements of damages normally associated with personal injury claims. Thus, medical surveillance, when scrutinized, presents a unique paradigm which deserves to be treated as a standalone claim, and scrutinized on its own terms. This would have the salutary effect of clearing the air and permitting a rational appreciation of non-existent role that manifest injury should play in medical surveillance jurisprudence. See generally Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 537-539 (S.D.N.Y. 2007)(“If no separate cause of action for medical monitoring were available, the [plaintiffs] would face a dilemma: either (1) bring a lawsuit, and be denied recovery for the increased risk of contracting serious illnesses; or (2) bear the financial burden of medical monitoring and risk being barred by the statute of limitations from suing later in the unfortunate event that a serious illness were {00014810} 29 contracted. The Court is not persuaded that the New York Court of Appeals would endorse such a result.”)(emphasis added). POINT IV THESE ACTIONS WERE TIMELY COMMENCED, AND PHILIP MORRIS’ CONTRARY ARGUMENT IGNORES THE POLICIES UNDERLYING BOTH LACHES AND ACCRUAL JURISPRUDENCE. The equitable counterpart to statutes of limitations is the affirmative defense of laches. As with statutes of limitations, defendants asserting a laches defense bear the burden of showing entitlement to dismissal. This requires a showing that the plaintiff had unreasonably delayed, and that such delays caused the defendant prejudice. See Dreikausen v. Zoning Bd. of Appeals, 98 N.Y.2d 165, 173 n.4 (2002); Galyn v. Schwartz, 56 N.Y.2d 969, 972 (1982). In this case, Philip Morris makes no attempt to establish either prong. Inasmuch as this is an equitable action, a timeliness analysis should be informed by these principles, and Philip Morris’ inability to satisfy them. The policy considerations normally underlying timeliness jurisprudence in legal contexts are also well developed. Plaintiffs should be given a reasonable amount of time to bring suit after their claims have accrued. Thus, an accrual rule that renders a claim untimely before a plaintiff could seek legal relief is improper. See, e.g., LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 706 (1995)(the {00014810} 30 “[s]tatute of Limitations does not run until there is a legal right to relief” and “accrual occurs when the claim becomes enforceable”)(citing Kronos, Inc. v AVX Corp., 81 N.Y.2d 90, 94 (1993)); id. at 705 (“‘A cause of action is the right to prosecute an action with effect ... It is not possible for one at the same time to have a cause of action and not to have the right to sue’”)(citations omitted)(emphasis in original); Martin v. Edwards Laboratories, Div. of American Hospital Supply Corp., 60 N.Y.2d 417 (1983)(discussing “the injured person’s interest in not being deprived of his claim before he has had a reasonable chance to assert it”); City of New York v. State, 40 N.Y.2d 659, 668 (1976)(“a claimant’s cause of action does not accrue until it possesses the legal right to be paid and to enforce its right to payment in court.”). In the present case, action was commenced at the first possible moment when an efficacious form of surveillance became available. Accordingly, there is no basis for suggesting that anyone delayed unreasonably. Plaintiffs made this very point in their opening brief. PB at 52-53. Philip Morris was silent in response, identifying no unreasonable delay. Philip Morris is equally silent respecting prejudice. At best, it muses in the abstract about other unspecified defendants, outside the context of tobacco litigation, who might be harmed. Yet, those hypothetical defendants are not the subject of this suit, or the certification order. It is telling that Philip Morris says {00014810} 31 nothing about its own circumstances, and offers no argument as to why it would suffer unfair prejudice should this case proceed as it has in Donovan. The reason is easy to discern. Philip Morris cannot plausibly assert that these claims are stale, or that it suffered material prejudice respecting the timeliness of suit. With respect to its own conduct, and the design of Marlboros, it has been actively litigating that subject for decades. The testimony of virtually all relevant witness has been memorialized in deposition and/or trial testimony. Meanwhile, insofar as Plaintiffs’ circumstances are concerned, their testimony involves matters that are easily and currently ascertainable (e.g., age, absence of cancer diagnosis, Marlboro use continuing through at least the year prior to filing suit). Testimony concerning present standards of medical practice, and the efficacy of LDCT surveillance, is likewise readily available and anything but stale. While medical issues may be involved, it would concern recent, rather than remote, events, and thus would present no staleness problem. See Blanco v. AT&T Co., 90 N.Y.2d 757, 770 (1997)(citing Martin, 60 N.Y.2d at 427). Philip Morris’ advocacy for a three-year statute of limitations commencing at the moment when a Plaintiff crosses the twenty pack-year smoking threshold is unsound and unjust. DB at 51. Defendant goes so far as to argue that it is immaterial, even in an equitable action, that no medically approved surveillance for lung cancer existed at the time Plaintiffs crossed the threshold. DB at 51-54. {00014810} 32 Thus, Philip Morris argues for a timeliness outcome that would render surveillance claims time-barred before they could be commenced in good faith. The inequitable nature of this outcome is self-evident, and need not be belabored. Philip Morris’ argument separately fails because the uncontroverted expert proofs are that a Marlboro smoker does not become a proper candidate for surveillance until she both amasses a twenty pack-year history, and reaches the age of fifty. A137-138 ¶¶16-18; A172-173 ¶¶18-20. This permits it to ignore a critical point which the federal courts unfortunately misapprehended, namely that Plaintiff Marcia Caronia, and untold thousands of class members, reached their fiftieth birthdays fewer than three years before suit was commenced. A297. For these claimants, Philip Morris is advocating for a rule that renders surveillance claims untimely before surveillance is even appropriate. It cannot cite any New York authorities, legal or equitable, for such an illogical and unjust proposition. None exist. Further underlying Philip Morris’ accrual analysis, and its invocation of a three-year statute of limitations, are its incorrect assumptions that this is a conventional personal injury action concerning a manifest injury, and seeking seek a legal remedy. DB at 51. Neither premise is accurate. Surveillance claims, by their nature, concern occult or latent conditions that are not manifest. A symptomatic individual requires treatment, not surveillance. Surveillance is intended for an at- {00014810} 33 risk population, only some of whom will develop lung cancer. Accordingly, to premise accrual on manifest or symptomatic injury is illogical. Nor is there any merit to Philip Morris’ claim that Plaintiffs seek money damages, or have an adequate remedy at law. As the District Courts in New York and Massachusetts recognized, this is an equitable action seeking injunctive relief A66 ¶33; A354; A372 ¶2; A375 ¶19; A384-386 ¶¶75-82; Donovan II, 268 F.R.D. at 11-28. The proofs demonstrate that only a properly administered program, with appropriate outreach, proper algorithms, quality control, and personnel will provide an adequate remedy. A159-164; A178-179. In arguing otherwise, Philip Morris cites no evidence. Further, it ignores the law of this state and the federal courts regarding what constitutes an adequate remedy at law. See Dailey v. New York, 170 A.D. 267 (1st Dept. 1915)(“In order to deny one the relief which a court of equity can give, it is not in all cases sufficient that there be a remedy at law. The remedy must be plain and adequate, and as certain, prompt, complete and efficient to attain the ends of justice and its prompt administration as the remedy in equity.”)(citations omitted), affd 218 N.Y. 665 (1916)).10 10 Significantly, the federal judiciary and Massachusetts law have adopted the same definition of what constitutes an adequate remedy at law. See Interstate Cigar Co. v. United States, 928 F.2d 221, 223 (7th Cir. 1991), McGrath v. C.T. Sherer Co., 195 N.E. 913 (1935). Citing the standard, the District of Massachusetts held last year in the companion action that no adequate remedy at law existed. Donovan III, 2012 U.S. Dist. LEXIS 37974, *38-56 (D. Mass. Mar. 21, 2012). {00014810} 34 In short, Plaintiffs do not seek to “recover damages for a personal injury.” Accordingly, CPLR § 214(5) is inapplicable. Rather, the catch-all six year limitation period of CPLR § 213(1) should apply. See Kaufman v. Cohen, 307 A.D.2d 113, 118 (1st Dept. 2003)(citing cases). Similarly, elements of any surveillance claim would surely include proof that an effective medical test for reliable early detection exists, respecting an occult disease process, which can be prescribed consistent with standards of care, and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury. PB at 75- 76. Thus, if accrual for statute of limitations purposes continues to mean, as it always has, that moment when it is possible to truthfully allege all of the elements of a claim and state a claim for relief, LaBello, 85 N.Y.2d at 706, accrual here cannot precede the time when surveillance first became available, Donovan I, 914 N.E.2d at 903-904; Hansen, 858 P.2d at 979 & n.12. Against this background, Philip Morris’ professed concerns respecting “bright-line” jurisprudence, never-ending liability, and “workability” ring hollow. First, Philip Morris asserts that predicating accrual on the establishment of a scientific or medical standard is unworkable. DB at 54. New York’s Legislature has disagreed. CPLR § 214-c(4) expressly conditions accrual upon allegations and {00014810} 35 proof “that technical, scientific or medical knowledge and information sufficient to ascertain the cause of injury had not been discovered, identified or determined.” Since the Legislature conditioned accrual on a factual inquiry into the state of the art respecting proximate causation in toxic tort latent disease cases, then surely in this case, a simpler inquiry into the standards of medical care is workable. Moreover, in virtually every jurisdiction, “discovery rules” which inquire inter alia into when the plaintiff should have known that the defendant harmed her, function quite well. See, e.g., Stoleson v. United States, 629 F.2d 1265, 1267-1271 (7th Cir. 1980)(plaintiff’s claim did not accrue until publication of “seminal article, documenting for the first time the relationship between angina and chronic exposure to nitroglycerin”); Beckley v. United States, 1995 U.S. Dist. LEXIS 14599, at *11-13 (describing how “plaintiff’s cause of action accrue[d] due to an advance in medical knowledge”); Hitt v. Stephens, 675 N.E.2d 275, 277 (Ill. App. Ct. 4th Dist. 1996)(discovery delays commencement of statute of limitations until plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused); Lopez v. Swyer, 300 A.2d 563, 566 (N.J. 1973) (discovery rule is a rule of equity “mitigating the often harsh and unjust results which flow from a rigid and automatic adherence to a strict rule of law”). Nor is there any merit to Philip Morris’ invocation of bright-line jurisprudence. “Bright-line” jurisprudence reflects a desire to measure accrual {00014810} 36 against incontrovertible facts (e.g., whether a plaintiff-spouse married the decedent before his wrongful exposure terminated). See Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 452 (1995). Although it cites this objective, on close inspection, Philip Morris’ approach offers no bright line at all. In that connection, Philip Morris would have this Court hold that Plaintiffs were injured, and their claims accrued, when their smoking-related risk became sufficient to justify surveillance. However, before the trial Court, Philip Morris strenuously disputed the proposition that reaching age fifty, with a twenty-pack year smoking history, was a proper threshold to justify surveillance. Simply put, what Philip Morris proposes would substitute one factual dispute respecting accrual for another. Further, it would be manifestly unjust to Plaintiffs, who a) had no basis for knowing whether twenty pack-years was a meaningful threshold upon crossing such a line, and b) could not have pursued lung cancer surveillance at that point, because no efficacious surveillance existed. Philip Morris is also incorrect in its analysis of the continuing exposure New York’s accrual jurisprudence. Commencing with Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287 (1936), it has been understood that where a toxic exposure harms bodily tissues, a cause of action accrues for injuries that may reasonably be expected to occur as a consequence. However, so long as wrongful exposure continues, timely claims may be brought for injuries or aggravations {00014810} 37 caused by later exposures occurring within the statue of limitations period. See, e.g., Pieczonka v. Pullman Co., 89 F.2d 353 (2d Cir. 1937); Sadowski v. Long Island R. Co., 292 N.Y. 448 (1944). The enactment of CPLR § 214-c(2) did not remotely eliminate the continuing tort doctrine. As Jensen v. Gen. Elec. Co., 82 N.Y.2d 77, 90-91 (1993), confirms, CPLR § 214-c is expressly limited to legal claims. Nor did Snyder v. Town Insulation, 81 N.Y.2d 429 (1993), eliminate continuing torts. It simply held that the plaintiff was not entitled to sit on his hands when there was no continuing misconduct, as defendant had installed insulation materials in the subject home almost a decade before suit was commenced. Id. at 431-432. Adopting Philip Morris’ approach would be a radical departure from New York law, granting it (or any tortfeasor) license to inflict new injury with impunity if the Plaintiff does not bring suit at the earliest moment when harm occurs. As the Honorable Learned Hand observed decades ago, a defendant does not gain a “prescriptive right” to continue engaging in misconduct, and expose a worker to known toxins, simply because the plaintiff does not bring suit at the earliest moment when he experiences its harmful effects. Pieczonca, 89 F.2d at 356.11 11 Any claim that the continuing wrong doctrine has been superseded by the enactment of CPLR § 214-c or this Court’s decisions in Snyder v. Town Insulation, Inc., 81 N.Y.2d 429 (1993), or Jensen v. Gen. Elec. Co., 82 N.Y.2d 77 (1993), are belied by numbers of decisions upholding its viability in proper circumstances. See, e.g., Covington v. Walker, 3 N.Y.3d 287, 292-293 (2004)(applying continuing {00014810} 38 In sum, Philip Morris’ accrual analysis is unsound and unjust. It ignores the legal effect of the continuing tort doctrine, and the practical reality that there was no efficacious relief for which Plaintiffs could have sought relief prior to 2006. Further, despite its professed desire for bright-line jurisprudence, Philip Morris’ proposal offers no bright lines. Nor has Philip Morris made a showing of undue delay or prejudice sufficient to support a laches affirmative defense. Ultimately, the policy considerations that might inform the setting of accrual parameters for this surveillance claim clearly favor the path followed by the Donovan Court. POINT V PHILIP MORRIS’ PROPOSED ELEMENTS OF A SURVEILLANCE CLAIM DO NOT BEAR SCRUTINY. Philip Morris predictably advocates for the most narrow and impractical surveillance elements, in a tacit bid to render class certification difficult or impossible. It pursues this goal by seeking to limit surveillance actions to negligence theories, and asking this Court to require a showing of “but for” causation at odds with New York law. DB at 42-47. Philip Morris seeks such elements not because they are faithful to New York law (they are not), but because wrong doctrine in context of divorce case; emphasizing that adopting a contrary rule “would further none of the policy considerations at the heart of our statutes of limitations jurisprudence”); Harvey v. Metro Life Ins. Co., 34 A.D.3d 364 (1st Dept. 2006); Shannon v. MTA Metro-North R.R., 269 A.D.2d 218, 219 (1st Dept. 2000); Ain v. Glazer, 257 A.D.2d 422, 423 (1st Dept. 1999); Barash v. Estate of Sperlin, 271 A.D.2d 558 (2d Dept. 2000). {00014810} 39 it hopes to implicate comparative fault or concurrent causes as individual issues to defeat certification under Fed. R. Civ. P. 23(b)(3). Next, Philip Morris irrationally demands that medical monitoring claims be denied unless a medical “consensus” exists that surveillance is warranted for a plaintiff; ignoring that a consensus rarely exists in medicine, and two physicians acting within standards of care frequently (and reasonably) differ about the best course of treatment. DB at 47-49. Finally, Philip Morris advocates for money damage rather than equitable remedies, because it wishes to avoid class certification under Fed. R. Civ. P. 23(b)(2), and advocates for an impractical approach whereby it should face no liability until after monitoring costs are incurred. DB at 49-50. As demonstrated below, Philip Morris’ stunted proposals are at odds with New York law, principles of equity, and common sense. a. “Negligence Only” Philip Morris offers no reasoned explanation why a medical surveillance action should only be premised on negligence claims. It is beyond dispute that misconduct can simultaneously give rise to multiple causes of action, sounding in e.g., strict products liability and breach of warranty of merchantability. Plaintiffs routinely pursue more than one legal theory. That is both proper and prudent, since the record at trial may support one theory and not another. See, e.g., Denny v. Ford Motor Co., 87 N.Y.2d 248, 251 (1995). {00014810} 40 As a matter of common sense, claims sounding in multiple theories, e.g., negligence, nuisance, strict product liability, ultrahazardous activity, breach of warranty, intentional misconduct, battery, statutory violations, fraud, and misrepresentation all might provide a predicate for a claim, whether equitable or legal, seeking a surveillance remedy. Thus, it is unsurprising that numerous courts have recognized that defective products can give rise to a claim for medical monitoring. See, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984)(defective airplane); Donovan I, 914 N.E.2d at 891 (defective cigarettes); Lamping v. American Home Products, 2000 Mont. Dist. LEXIS 2580, *14 (Mont. Dist. Ct. 2000)(fen-phen prescription drugs); Petito v. A.H. Robins Co., 750 So. 2d 103 (Fla. Dist. Ct. App. 3d Dist. 1999)(same). Undeterred, Philip Morris suggests that it would be preferable to limit monitoring to negligence claims because in a products liability context, manufacturers “cannot proactively control the scope of their prospective liability.” DB at 42. That is nonsense. Philip Morris had an obligation to produce a safe product. See Codling v. Paglia, 32 N.Y.2d 330, 340-341 (1973). Nonetheless, it designed, manufactured, marketed, and sold cigarettes which were both addictive and needlessly carcinogenic. It foresaw that Marlboro cigarettes would be smoked by consumers like the Plaintiffs, and that customers using its product in the intended fashion would experience increased risk of cancer. It is uncontested that {00014810} 41 Philip Morris had the capacity to control the scope of its liability by designing a safer product. Having failed to do so, it has no reasoned basis for avoiding liability under applicable theories of fault.12 b. Proximate Causation Next, Philip Morris claims that Plaintiffs are asking this Court to “strip but for causation from New York law.” DB at 45. Quite to the contrary, it is Philip Morris which is attempting to turn New York’s law on its head, by advocating for a causation standard which has consistently been rejected in this State. It is settled beyond argument that proximate cause in New York is governed by a “substantial factor,” rather than a “but for” standard. New York’s Civil Pattern Jury Instruction (“PJI”) 2:70 clearly reads: An act or omission is regarded as the cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. There may be more than one cause of an injury, but to be substantial it cannot be slight or trivial. You 12 Nor is there any merit to Philip Morris’ reference to language from the Supreme Judicial Court of Massachusetts which refers to negligence as an element of a surveillance claim. Donovan I, 914 N.E.2d at 902. Elsewhere in the opinion, the Supreme Judicial Court confirmed the viability of Plaintiffs’ breach of warranty and consumer fraud claims. Id. at 903, n.13. Thus, as Philip Morris is constrained to admit, the District Court on remand properly recognized that medical monitoring in Massachusetts is not limited to negligence claims in the common law sense, and certified Plaintiffs’ implied warranty and claims for violations of Mass. Gen. Laws ch. 93A. Donovan II, 268 F.R.D. at 30-31. {00014810} 42 may however, decide that a cause is substantial even if you assign a relatively small percentage to it. A wealth of decisions articulate and reaffirm this standard. See, e.g., Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 109-110 (1983); Prager v. Motor Vehicle Acci. Indemnification Corp., 53 N.Y.2d 854, 856 (1981); Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520 (1980). See also Kriz v. Schum, 75 N.Y.2d 25, 34-35 (1989); Fahey v A.O. Smith Corp., 77 A.D.3d 612, 615 (2d Dept. 2010)(“Whether an action is pleaded in strict products liability, breach of warranty, or negligence, the plaintiffs must prove that the alleged defect is a substantial cause of the events which produced the injury.”)(citing cases). The Commentary to the Pattern Jury Instructions confirms that “but for” causation is “inconsistent” with New York law. Commentary to N.Y.P.J.I. 2:70. See Caruolo v. John Crane, Inc., 226 F.3d 46, 56 (2d Cir. 2000)(“under New York law . . . . [w]here more than one factor operates separately or together with others to cause an injury or disease, each may be a proximate cause if it is a substantial factor in bringing about that injury”); Sheehan v. New York, 40 N.Y.2d 496, 503 (1976); Dunham v. Canisteo, 303 N.Y. 498, 505-506 (1952). In fact, use of the phrase “the cause” rather than “a cause” has been held to be reversible error in New York. Capicchioni v. Morrissey, 205 A.D.2d 959, 960 (3d Dept. 1994); see also Fox v. Tedesco, 15 A.D.3d 538, 539 (2d Dept. 2005). {00014810} 43 This State’s courts have taken great pains to draw the distinction Philip Morris tries to blur between “substantial factor” and “but for” causation, and rejected the latter approach as unsound. E.g., King v St. Barnabas Hosp., 87 A.D.3d 238, 239 (1st Dept. 2011)(“Negligent resuscitation attempts — while not a but-for cause of the victim’s distress — may nonetheless contribute to a death so as to make the imposition of liability appropriate.”); Pavlou v. City of New York, 21 A.D.3d 74, 82-83 (1st Dept 2005)(“The defense’s argument that the accident would have occurred even without this negligence amounts to the use of a ‘but for’ analysis . . . this type of ‘but for’ approach to tort liability has been rejected as the test of proximate cause.”)(citations omitted), aff’d, 8 N.Y.3d 961 (2007); Benaquista v. Municipal Hous. Auth., 212 A.D.2d 860, 861 (3d Dept. 1995) (“‘[B]ut for’ rule [of causation] is inconsistent with accepted substantive rules of [New York] tort law.”). Indeed, even Philip Morris’ authorities reinforce that “substantial factor” causation governs. See, e.g., Gonzalez v. Delta Int’l Mach. Corp., 307 A.D.2d 1020, 1021-1022 (2d Dept. 2003)(reaffirming “substantial factor” standard and explaining that plaintiff must establish that harm “was sustained wholly or in part by reason of the defendant’s negligence”)(emphasis added); Marden v. Maurice Villency, Inc., 29 A.D.3d 402 (1st Dept. 2006)(affirming order granting summary judgment because plaintiffs did not show that a manufacturing or design defect “was a substantial factor” in accident). {00014810} 44 The fact that New York employs a “substantial factor” standard is further confirmed by New York P.J.I. 2:71, which addresses the subject of concurrent causes. It embraces the fact that there can be multiple causes for an injury, and that the existence of other causes, even stronger causes, does not eliminate a party’s liability, so long as its misconduct meets the substantial factor test. See, e.g., Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 561 n.2 (1999)(“there may be more than one proximate cause of an injury”); Fox, supra, 15 A.D.3d at 539. One can imagine a person who was wrongfully exposed to thirty pack-years of excessive tars from defectively designed Marlboros, who also at one time worked with asbestos; or a person who smoked Lucky Strikes for twenty years and then switched to Marlboros for the next thirty-five. In either case, “but for” causation might permit all tortfeasors to avoid liability, since each tortfeasor’s misconduct, standing alone, would arguably be sufficient to warrant surveillance.13 13 The above-described situations should be distinguished from a situation where everybody requires some form of surveillance as a matter of course. Thus, where under the standard of care, all women over a certain age require Pap tests, or all men over a certain age require prostate exams, misconduct that calls for surveillance that all the world should receive anyway, arguably might not give rise to a remedy, since the need for that remedy effectively predated and was independent of any misconduct. {00014810} 45 That is precisely why New York’s courts have rejected the illogical and unjust standard Philip Morris seeks to impose.14 c. “Medical Consensus” Philip Morris also advocates for an ill-defined concept which it calls a “national medical consensus.” DB at 11, 47. Philip Morris improperly requests that Plaintiffs establish the existence of such a consensus in any surveillance claim. Rejecting such an unsound approach, the Supreme Judicial Court of Massachusetts employed the familiar concept of a “standard of care.” See Donovan I, 914 N.E.2d at 902 (plaintiff must establish that “such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care”). This is a sensible standard, which juries routinely address in 14 Even if New York followed a “but for” causation requirement – and it does not – in this case, Plaintiffs fulfilled those pleading requirements. In erroneously concluding otherwise, the District Court failed to properly construe the fact record and the Complaint, and confused the concept of risk with the distinct concept of eligibility for surveillance as a matter of good medical practice. Each puff of a Marlboro creates some risk. Yet, Plaintiffs contend, and offered proof that, only when an individual reaches the age of fifty and has 20 pack-years of exposure to Marlboros does the level of risk rise to the threshold at which surveillance is required. As a matter of pleading and proof, Plaintiffs have come forward with a showing that had Plaintiffs smoked the safer feasible alternatives presented, their overall exposure would not have reached a level sufficient to medically justify surveillance, and “but for” the added wrongful exposure, there would have been no basis to seek relief. This error was identified to the Second Circuit, but not reached in its decision certifying questions to this Court. {00014810} 46 civil litigation, and with which physicians are familiar. Philip Morris has offered no cogent reason for departing from this approach. In contrast, its preferred “national medical consensus” test, which suggests unanimity, is designed to create juror confusion, and would enact an insurmountable obstacle for many wronged parties seeking to recover. It also ignores the fact that in medicine, as in most professions, debates frequently endure long after a standard of care is established. To illustrate, while blood tests screening for prostate cancer are widely accepted, some disagree; just as controversy exists respecting whether mammograms should commence at age forty or fifty. More generally, in medicine, it is entirely possible for one group of physicians to favor one treatment while others favor a different approach (i.e., surgery vs. chemotherapy), with both schools of thought being within the standard of care. As a legal matter, once the standard of care is met, that should suffice. Thus, it is unsurprising that neither the Donovan court, nor any other of which Plaintiffs are aware, has adopted a “national consensus” element. See, e.g., Cook v. Rockwell Int’l Corp., 755 F. Supp. 1468, 1477 (D. Colo. 1991)(citing In re Paoli R. Yard PCB Litigation,, 916 F.2d 829, 850-852 (3d Cir. 1990)); Petito, 750 So. 2d at 106- {00014810} 47 107; Donovan I, 914 N.E.2d at 902; Lamping, 2000 Mont. Dist. LEXIS 2580, at *13-14; Askey, 102 A.D.2d at 137.15 Philip Morris’ additional language – requiring a plaintiff to prove that the monitoring sought is “medically justified based on his or her individual circumstances” – should be seen for what it is: a cynical poison pill intended to render class certification difficult if not impossible. DB at 47. The Donovan elements already safeguard against meritless claims, by requiring that a plaintiff establish that the medical surveillance be “reasonably (and periodically) necessary, conformably with the standard of care.” Donovan I, 914 N.E.2d at 902. This is an appropriately stringent standard, requiring expert proofs concerning the advisability of the monitoring sought, which can nonetheless be established on a class-wide basis in this circumstance. Because of the lethality of the product, the class as defined – Marlboro smokers, aged fifty or older, with a twenty-pack-year history – are proper candidates for admission to a medical surveillance program. Nonetheless, such a standard would protect against overbroad or improper classes where the same cannot be said (e.g., a class on behalf of anyone who ever smoked a cigarette, or those who ever drank diet soda). 15 Indeed, even Philip Morris’ citations (DB at 47) do not establish a medical consensus element. See, e.g., In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 73 (S.D.N.Y. 2002)(denying class certification where even the plaintiffs’ experts characterized the surveillance sought as “a research project” or “a means by which … a test or experiment or study might be conducted.”). {00014810} 48 The example Philip Morris cites underscores the cynicism and senselessness of its preferred approach. In advocating for this element, the best it can muster is an excerpt from Plaintiffs’ expert disclosures noting that a tiny fraction of the proposed class might not immediately benefit from LDCT surveillance because morbid obesity makes it difficult for them to fit into a scanner, or because they suffer from a rare illness which might be exacerbated by LDCT technology (DB at 48-49). Yet, even for those persons, establishment of a surveillance program would have utility if and when their comorbidities abate. More fundamentally, perhaps, hypothesizing such individuals is hardly a basis for denying relief to the class as a whole. The identical argument was raised in Massachusetts as a basis for denying class certification. The Honorable Nancy Gertner rejected that argument and granted certification, explaining that the remedy sought is “a program that invites medical personnel to manage it and its participants,” who would “ask preliminary medical questions before performing the scan to ensure its safety for the patient.” Donovan II, 268 F.R.D at 16-17 (“[a]s in any medical monitoring program, some variation among patients is built into the program”). It would be inequitable to define a medical monitoring claim with elements so exacting that they render monitoring on a class-wide basis virtually impossible. d. Damages {00014810} 49 The final element Philip Morris advances asks that medical surveillance relief be strictly limited to the “medical monitoring that a Plaintiff actually receives.” Apparently underlying this proposal is an unsupported view that Plaintiffs recovering damages for surveillance are less likely to spend their awards for medical care than those who bring tort actions for traditional physical injuries. DB at 49. Conspicuously missing from this analysis is the fact, recognized by the District Court, and explicit in the pleadings, that Plaintiffs seek access to medical surveillance program, rather than money damages. A66 ¶33; A354; A372 ¶2; A375 ¶19; A384-386 ¶¶75-82. Accordingly, the specter of Plaintiffs seizing their awards and taking a vacation or visiting Atlantic City is off the mark. Once again, the Supreme Judicial Court heard essentially the same arguments from Philip Morris, and readily saw through them. Recognizing that by its nature medical monitoring involves future costs rather than the reimbursement of past expenses, the Donovan Court wisely established, even in individual cases, establishment of a fund. It explained that monitoring costs and attorneys’ fees might be paid from the fund, and stipulated that any unused monies would revert back to the tortfeasor. Donovan I, 914 N.E.2d at 902, n.12. This approach met {00014810} 50 Philip Morris’ professed concern that monies would be used for non surveillance purposes, and finds support nationwide.16 Importantly a programmatic remedy would also allow for outreach, oversight, and administrative personnel, to ensure that class members receive follow-up needed to protect their health. A159-164; A178-179. The same cannot be said for Philip Morris’ ill-reasoned and incoherent proposal, whereby Plaintiffs presumably would receive little or no outreach, be forced to seek out physicians, “pay-as-they-go,” return to Philip Morris with a bill, and return to court if they disagree on coverage questions. Such an approach would discourage impecunious parties from seeking life-saving surveillance, while necessitating the ongoing judicial oversight Philip Morris elsewhere seeks to avoid. e. Class Action Considerations Although Philip Morris does not candidly acknowledge as much, the true spirit animating its discussions respecting possible elements of a surveillance claim is the desire to create claims that cannot be readily certified for class action purposes. DB at 39-50. Underlying that desire is the recognition that, in the real world, unless surveillance claims can be certified as class actions, they will not normally be brought. 16 In the same vein, as CPLR § 909 expressly provides, in New York, attorneys’ fees may be awarded in a class action, thereby making possible the prosecution of meritorious negative value suits. {00014810} 51 The instant case perfectly illustrates this point. An individual claimant desiring to have Philip Morris pay for LDCT scans, whose cost might be measured in hundreds of dollars per year, is extremely unlikely to take on Philip Morris and its armies of talented counsel to obtain such a remedy, no matter how meritorious his claim. This is a classic example of what has been described as “a negative value” case, which is to say that it is one where each individual’s harm or remedy would not justify litigation, but where the aggregate harm to numerous similarly circumstanced claimants would. Donovan II, 268 F.R.D. at 29 (“Here, class members almost certainly would not be able to litigate these claims on their own.”). Class actions are permitted in both New York and in the federal courts, as an equitable matter, to prevent precisely such injustice. Both Fed. R. Civ. P. 23 and Article 9 of the CPLR establish carefully thought out rules and procedures striking the proper balance respecting the certification of class actions. Thus, traditional concepts of numerousity (Fed. R. Civ. P. 23(a)(1), CPLR § 901(a)(1)), commonality (Fed. R. Civ. P. 23(a)(2), CPLR § 901(a)(2)), typicality (Fed. R. Civ. P. 23(a)(3), CPLR § 901(a)(3)) and adequacy (Fed. R. Civ. P. 23(a)(4)), all figure into the certification process and protect the interests of the litigants. The question of the superiority of class treatment to alternatives is likewise weighed in proper contexts (Fed. R. Civ. P. 23(b)(3), CPLR § 901(5)), as are the difficulties that {00014810} 52 might be encountered in prosecuting or defending putative class actions. (Fed. R. Civ. P. 23(b)(3)(D), CPLR § 902(5)). In short, there exist ample procedural and substantive protections under New York and federal law to protect against ill- founded or unmanageable classes. In this case, the District Court never decided the class certification motion that was before it. However, in Massachusetts, pursuant to the Federal Rules of Civil Procedure that will govern class certification here, the District Court wrote a lengthy and learned opinion certifying the class Plaintiffs sought. Donovan II, 268 F.R.D. at 1. After Judge Gertner, the author of Donovan II, retired, Philip Morris sought decertification. The Honorable Denise Casper denied Philip Morris’ decertification motion in its entirety. Donovan III, 2012 U.S. Dist. LEXIS 37974. Informed by the Donovan I decision, the Donovan II and Donovan III Courts concluded that Plaintiffs’ proposed class met the numerosity, commonality, typicality and adequacy requirements of Fed. R. Civ. P. 23(a). They held that the Massachusetts Plaintiffs had described an ascertainable class, and sought injunctive or equitable relief pursuant to Fed. R. Civ. P. 23(b)(2). They likewise held that there were no individual issues that would serve as an impediment to class certification, and certified a class essentially identical to the one sought herein. {00014810} 53 Of course, the question of class certification is not before this Court, and ultimately belongs in the federal forum. That stated, it would be foolish to pretend that the manner in which this Court rules will not potentially impact class certification questions. Medical monitoring frequently, if not always, will be a negative value claim. Thus, adopting the “elements” Philip Morris proposes -- which no court has done -- would be antithetical to the spirit of equity, as it would mean denying wronged parties any realistic hope of seeking a life-saving remedy in court. POINT VI PLAINTIFFS’ LEGAL CLAIMS WERE IMPROPERLY DISMISSED. In their opening Brief, Plaintiffs demonstrated that the Second Circuit’s analysis of their negligence, strict liability, and warranty claims reflected a misapprehension of New York law. Philip Morris’ primary response is that this Court should not address those mistakes at all. As a fallback, it makes a cursory defense of legally flawed rulings. Both arguments fail. A. Plaintiffs’ Arguments are Entirely Consistent with the Certification Order First, there is nothing remotely improper with asking this Court to reformulate the certified questions to correct erroneous assumptions underlying the {00014810} 54 certification decision. This Court has reformulated certified questions on a host of occasions, particularly where, as here, the federal courts misapprehended a salient principle of State law. See, e.g., Barenboim v Starbucks Corp., 2013 N.Y. LEXIS 1678, *10 (N.Y. June 26, 2013); Commodity Futures Trading Commn. v. Walsh, 17 N.Y.3d 162, 176 (2011); Israel v. Chabra, 12 N.Y.3d 158, 163 (2009); Fuentes v. Bd. of Educ., 12 N.Y.3d 309, 314 (2009); Argentina, supra, 93 N.Y.2d at 561 n.2. That practice makes good sense. As the Supreme Court of West Virginia observed in another surveillance action, “[r]equiring a question to be answered precisely as it is certified imposes a counterproductive rigidity that could decrease the utility of the answer received. Permitting the receiving court to amend the certified question freely may also adversely affect the utility of the answer and result in the issuance of an advisory opinion.” Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 428 (W. Va. 1999). In this case, the Second Circuit asked for guidance about the cognizability of an equitable cause of action for medical monitoring, its elements, and when such a claim accrues. “[I]n certifying th[os]e … question[s],” it is clear that “the Second Circuit was interested in knowing” whether Plaintiffs had stated valid claims for medical monitoring under New York law, and whether those claims were timely. Barenboim, 2013 N.Y. LEXIS 1678, at *11, n.2. Moreover, the Second Circuit expressly gave this Court permission to expand its inquiry, emphasizing “[w]e do {00014810} 55 not intend this articulation of the above specified questions to limit the scope of the analysis by the Court of Appeals, and we invite the Court of Appeals to expand upon or alter these questions as it deems appropriate.” Caronia v. Philip Morris United States, Inc., 715 F.3d 417, 450 (2d Cir. 2013)(emphasis added). For all the reasons stated above, Plaintiffs respectfully submit that they have stated a viable independent equitable cause of action for medical monitoring, and that their claims are not time-barred. Further, Plaintiffs respectfully submit that the elements of such an action are satisfied by the Fourth Amended Complaint (which, of course, can be amended as needed following guidance from this Court). However, should the Court reach a different conclusion -- e.g., determine that medical monitoring sounds in law rather than equity, or is a form of relief, rather than a cause of action -- it does not logically follow that Plaintiffs failed to state a claim, or that their actions are untimely. The federal courts would clearly benefit from guidance respecting the nature and scope of medical monitoring claims in New York. Indeed, the federal panel expressly invited such guidance, asking this Court to expand upon or alter its questions. Thus, correcting the federal courts’ misapprehension of New York law would be in complete harmony with this Court’s precedents, and the certification decision. That is particularly the case given the substantial overlap between the issues certified to this Court (i.e., whether plaintiffs stated a cognizable equitable medical monitoring cause of {00014810} 56 action) and those addressed in the Second Circuit’s decision (addressing whether plaintiffs’ claims for medical monitoring sounding in negligence, strict liability, and breach of warranty were timely and cognizable). B. Plaintiffs’ Claims are Timely With regard to the merits, Philip Morris’ arguments on timeliness are unavailing. Philip Morris contends that Plaintiffs’ medical monitoring claims accrued when they a) reached a twenty pack-year smoking history, and b) knew that smoking increased their risk of contracting lung cancer. Citing those criteria, Philip Morris insists that the asymptomatic Plaintiffs were required to bring suit for medical monitoring by 1996 -- a time when it tacitly acknowledges no form of surveillance was available. As a threshold matter, Philip Morris overlooks another important criterion: that the smoker has passed his fiftieth birthday. As Plaintiffs’ opening Brief explained, the expert proofs established that both age and smoking history contribute to an individual’s increased risk of lung cancer. The proposed class was defined based on proofs showing that LDCT surveillance generally becomes advisable when smokers reach a twenty pack-year history and her fiftieth birthday. A137-138 ¶¶16-18; A172-173 ¶¶18-20; A372 ¶1. As noted in Plaintiffs’ opening Brief, Ms. Caronia turned fifty in 2005 -- less than one year before this action was commenced. A297. Thus, her action was {00014810} 57 unquestionably timely, even under the flawed accrual analysis Philip Morris employs. The same is surely true for other members of the proposed class. Philip Morris has no answer to this point. It makes no attempt to defend the unjust and illogical outcome reached, which inadvertently held that Ms. Caronia was compelled to file suit before she was even a proper candidate for surveillance. Setting the question of age aside, Philip Morris’ accrual analysis also makes no sense in light of the nature of this action for medical monitoring. In essence, Philip Morris’ “argument” consists of selectively cited cases which articulate the general proposition that a cause of action does not accrue until an injury is sustained, at which point all elements of the tort can be truthfully alleged in a complaint, making the plaintiff’s claim enforceable. Insofar as that “general proposition” even ties accrual to the moment of “injury,” it reflects the fact patterns which courts routinely address -- straightforward personal injury actions seeking money damages for unitary injuries. In those cases, is not unreasonable to say that a claim accrues at injury. A victim of a car accident knows when he is injured, and is seeking money damages. Since he can allege duty, breach, causation, and injury, and make a prayer for relief at the time of injury, his claim is “enforceable” at that point. Thus, his failure to bring suit when the statutorily prescribed statute of limitations passes will usually result in dismissal. {00014810} 58 This action does not fit that mold for reasons unaddressed by Philip Morris. First, it is not akin to a car accident in which the Plaintiffs were suddenly “injured” when they reached twenty pack-years of smoking. Rather, smoking causes harm in a dose-response fashion, such that risk of lung cancer increases as one ages and amasses a longer pack-year history. A137-138 ¶¶16-18; A172-173 ¶¶18-20. Twenty pack-years simply represents a threshold at which Plaintiffs’ experts opine that risk of cancer is sufficiently high to warrant LDCT surveillance for persons fifty or older. Id. Philip Morris cited no authority for the proposition that such a history constitutes an injury. Notably, it also disputed below the proposition that all persons with such a history of Marlboro use are proper candidates for LDCT surveillance. Thus, assuming arguendo that tort claims always accrue at the point of “injury,” Philip Morris failed to meet its “obligation to prove that the [Plaintiffs’] injur[ies]” occurred by 1996. Martin v. Edwards Laboratories, Div. of Am. Hosp. Supply Corp., 60 N.Y.2d 417, 428 (1983)(citations omitted). Since timeliness is an affirmative defense, Philip Morris bore the burden of proof. Having failed demonstrate the absence of a genuine issue of material fact, summary judgment was improper. Perhaps more importantly, Philip Morris’ position ignores the reality that Plaintiffs had no cause of action in 1996, because there was no efficacious form of {00014810} 59 relief for which they could have brought suit. As discussed above, this Court has long held that claims accrue when they are enforceable, which is the point when plaintiffs can seek meaningful relief in court. LaBello, 85 N.Y.2d at 705-706 (citations omitted); City of New York, 40 N.Y.2d at 668 (“a claimant’s cause of action does not accrue until it possesses the legal right to be paid and to enforce its right to payment in court”); Jacobus v. Colgate, 217 N.Y. 235, 241-243 (1916)(Cardozo, J.)(“The destruction of every remedy destroys the cause of action”). As a practical matter, that judgment makes good sense. The contrary “rule,” for which Philip Morris advocates, would encourage premature actions wasteful of judicial resources, and unfairly penalize plaintiffs who do not bring suits which are destined to fail. Philip Morris has no serious answer to either this Court’s accrual law, or the policy judgments and equitable concerns it embodies. Instead, it seeks to trivialize Plaintiffs’ claims and divert attention by characterizing LDCT surveillance as Plaintiffs’ “preferred remedy,” as if to suggest that there was an alternative form of monitoring the Plaintiffs could have sought in 1996. DB at 11. Those tactics are transparent and unpersuasive. Philip Morris never disputed Plaintiffs’ factual showing that there existed absolutely no remedy the Plaintiffs could have sought prior to this suit’s commencement. The only remedy Plaintiffs seek, and the only remedy they can in good faith seek, is medical surveillance to {00014810} 60 detect lung cancer at the earliest possible moment, improving their chances of successful treatment. Both sides agreed below that no efficacious surveillance existed before this suit’s commencement. Philip Morris certainly cites no new evidence before this Court. Consequently, Plaintiffs could not have made a prayer for relief before 2006, and any lawsuit they might have brought would have been doomed at its inception. In such circumstances, their claims did not accrue because they lacked the ability to prosecute their action with effect. See LaBello, 85 N.Y.2d at 705-706; Jacobus, 217 N.Y. at 241. Philip Morris does not meaningfully engage with this case law. Indeed, it ignores critical language of this Court in LaBello, which undercuts its preferred approach. Perhaps more striking is its inability to distinguish the holding of the Supreme Judicial Court of Massachusetts. Faced with mirror-image pleadings and proofs, the SJC rejected Philip Morris’ accrual argument, holding that Plaintiffs were not required to bring a suit for medical monitoring until an efficacious form of lung cancer surveillance became available to them. Donovan I, 914 N.E.2d at 904. Plaintiffs respectfully submit that this Court should reach a similar conclusion, because a rigid application of principles crafted to address inapposite personal injury cases law would prove unjust. See Blanco v. AT&T Co., 90 N.Y.2d 757, 773 (1997)(“[I]n cases such as this, where we are presented with new categories of tort claims and injuries, we have always done a careful and balanced {00014810} 61 analysis of the nature of the claim and its intricate interplay with the policy considerations at the heart of our Statute of Limitations jurisprudence. Our analysis here is not a rejection of our long line of cases from Schmidt to Consorti; it is a recognition that RSI cases present new and different challenges in defining the accrual dates for plaintiffs’ causes of action.”)(citing Martin, 60 N.Y.2d, at 427- 428). Philip Morris’ timeliness analysis independently fails under “continuing tort” doctrine. As discussed above, this doctrine recognizes that a defendant does not gain a prescriptive right to continue engaging in misconduct simply because the plaintiff did not bring suit at the earliest moment when he experiences its harmful effects. Instead, a defendant’s continuing misconduct remains subject to suit where, as here, it continues to inflict new and aggravate old harm. Pieczonka, 89 F.2d at 356; Sadowski, 292 N.Y. at 457. Philip Morris does not challenge Plaintiffs’ factual showing that Marlboros have been excessively carcinogenic for decades, relative to safer alternative designs. A260-275. Nor does it dispute that the last 3 years of smoking substantially contribute to the risk of lung cancer, by increasing the dose and duration of harmful particles and gases, and maintaining the destructive and pro- carcinogenic processes. A139-143; A170-171. {00014810} 62 Instead, Philip Morris asserts that the continuing tort doctrine has been abrogated. It has not. As discussed supra, Jensen confirms that C.P.L.R. 214-c(2) “applies by its terms only to actions ‘to recover damages,’” and does not “affect or purport to affect the availability to a party of seeking injunctive equitable relief.” 82 N.Y.2d at 89-91. Philip Morris’ remaining cites are all inapposite decisions in which the defendants’ alleged misconduct ended well before the plaintiff filed suit. E.g., Snyder, 81 N.Y.2d 429-432 (defendants installed insulation which immediately caused symptoms; plaintiffs waited for years to file suit); Blanco, 90 N.Y.2d at 764 (evaluating allegations that keyboards designed and sold years earlier contained defects which caused repetitive strain injuries); MRI Broadway Rental, Inc. v. United States Mineral Prods. Co., 92 N.Y.2d 421 (1998)(action against asbestos manufacturer whose product was installed in building decades before suit was commenced). Either the continuing tort doctrine or accrual principles articulated by this Court would independently render Plaintiffs’ claims timely. Taken together, they demonstrate the unfounded and radical nature of Philip Morris’ position. Philip Morris does not dispute that Marlboro cigarettes are unnecessarily carcinogenic. It does not dispute that it has long possessed the ability to design them in a safer fashion, which would deliver dramatically fewer cancer-causing tars. It does not dispute that the Plaintiffs purchased the cigarettes in the same condition in which it {00014810} 63 sold them, up to and including 2006, when the complaint was filed. It does not dispute that each cigarette they smoked harmed the cells and tissues of the Plaintiffs’ lungs, and that the final years of their smoking constituted a substantial factor in elevating their risk of developing lung cancer. Nor does it dispute that there was no efficacious remedy available to this at-risk population until the complaint’s filing. Nonetheless, it takes the position that Plaintiffs were compelled to bring suit at a time when no viable remedy existed. It would further have this Court eliminate the continuing tort doctrine, thereby granting it a perpetual license to continue engaging in misconduct, based on what would have been a sensible decision not to bring suit in 1996. Finally, it takes the ill reasoned position that persons such as Marcia Caronia were required to bring suit before their fiftieth birthdays, when neither side’s experts have opined that surveillance would be appropriate. Those arguments are inconsistent with New York law, principles of equity, and common sense. Taken together, they demonstrate beyond any question that it is Philip Morris who is attempting to rewrite New York law. This Court should reject its invitation to do so, and hold that Plaintiffs’ claims are timely. C. Philip Morris Misapprehends New York Law, Implicitly Suggesting that Its Products Carry No Implied Warranty of Merchantability {00014810} 64 Philip Morris does not dispute that, in warranty cases, “recovery may be had upon a showing that the product was not minimally safe for its expected purpose.” Denny v. Ford Motor Co., 87 N.Y.2d 248, 259 (1995). It points to no evidence establishing that Marlboros were “minimally safe” for smoking. Indeed, it does not even challenge Plaintiffs’ factual showing that Marlboros were highly and unnecessarily carcinogenic. A260-275. Nor, for that matter, does Philip Morris dispute Plaintiffs’ proofs that this excessive carcinogenicity substantially contributed to their increased risk of lung cancer, and need for surveillance. Instead, Philip Morris insinuates that Marlboros carry no implied warranty of merchantability at all. According to Philip Morris, since the implied warranty of merchantability addresses disappointed consumer expectations, it ceases to exist if consumers believe that a product carries risks. In the “buyer beware” universe contemplated by Philip Morris, a manufacturer has absolutely no obligation to produce a safe product, or even alert the consumer to dangers which might otherwise be misperceived or underestimated. He is absolved of liability, presumably at the moment his product’s potential dangers enter the public discourse. This position is flatly contradicted by this State’s law. Preliminarily, any suggestion that Philip Morris has disclaimed the warranty of merchantability, by putting federally mandated warnings on Marlboros or otherwise, is incorrect. {00014810} 65 While the warranty of merchantability may be disclaimed, the language of disclaimer must mention “merchantability,” and if written, must be conspicuous. N.Y. U.C.C. § 2-316(2) (McKinney); Pay Tel Sys., Inc. v. Seiscor Technologies, Inc., 850 F. Supp. 276, 281 (S.D.N.Y. 1994); Carbo Indus. Inc. v. Becker Chevrolet Inc., 112 A.D.2d 336, 339 (2d Dept. 1985). Philip Morris has made no showing that it disclaimed the implied warranty of merchantability for Marlboro cigarettes. Philip Morris’ argument is also flawed because it overstates differences between warranty and strict liability claims. To be sure, Denny drew distinctions between those causes of action, noting that strict liability claims involve a “risk/utility” test, while warranty claims are concerned with whether a product is “minimally safe” focusing “on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners.” Denny, 87 N.Y.2d at 258-259. Yet, this Court also expressly recognized that “the distinction between the defect concepts in tort law and in implied warranty theory may have little or no effect in most cases.” Id. at 262. That is the case here. Under Denny, Plaintiffs need not prove that the risks associated with Marlboros outweigh their utility, or that feasible alternative designs exist, in order to prevail on a warranty theory. However, any such showing in a warranty action obviously bears on the pivotal {00014810} 66 question of whether Marlboros are “minimally safe.” Evidence of feasible design improvements is particularly probative when coupled with evidence showing that possible improvements were concealed from (or misrepresented to) the public, which failed to grasp how the product’s hazards could have been reduced without sacrificing its “desirable” qualities. A260-275. “Analysis of a violation of UCC 2-314 … involves fact issues, often complex, regarding the suitability of the product for its intended use and the reasonable expectations of the purchaser.” See also Fahey v A.O. Smith Corp., 77 A.D.3d 612, 617 (2d Dept. 2010). Yet, in this case, Philip Morris has offered and can cite to not a shred of evidence to demonstrate that Marlboros are minimally safe. In fact, it cites no evidence at all regarding the “safety” of its product. It also does not seriously dispute Plaintiffs’ proofs showing that Marlboros are dramatically more dangerous than they needed to be. Nor does it deny that it has spent hundreds of millions of dollars to successfully create the widespread but false belief that Marlboros provided a unique flavor or satisfaction to its users, which would be compromised by any changes. Nor, for that matter, does Philip Morris even attempt to demonstrate that its consumers perceived the degree of risk associated with smoking Marlboros. In short, Philip Morris studiously avoids addressing the facts bearing on Plaintiffs’ warranty claim. {00014810} 67 Philip Morris is equally dismissive of the law. Philip Morris attempts, without success, to write the “minimally safe” language out of Denny. It likewise ignores the language of this Court’s seminal decision relating to breach of implied warranty, Codling v. Paglia, 32 N.Y.2d 330 (1973). In Codling, this Court clearly wrote: Today as never before the product in the hands of the consumer is often a most sophisticated and even mysterious article. Not only does it usually emerge as a sealed unit with an alluring exterior rather than as a visible assembly of component parts, but its functional validity and usefulness often depend on the application of electronic, chemical or hydraulic principles far beyond the ken of the average consumer. Advances in the technologies of materials, of processes, of operational means have put it almost entirely out of the reach of the consumer to comprehend why or how the article operates, and thus even farther out of his reach to detect when there may be a defect or a danger present in its design or manufacture. In today’s world, it is often only the manufacturer who can fairly be said to know and to understand when an article is suitably designed and safely made for its intended purpose. . . . [T]he manufacturer . . . alone has the practical opportunity, as well as a considerable incentive, to turn out useful, attractive, but safe products. To impose this economic burden on the manufacturer should encourage safety in design and production; and the diffusion of this cost in the purchase price of individual units should be acceptable to the user if thereby he is given added assurance of his own protection. {00014810} 68 Id. at 340-341. Read in conjunction with Denny, this language refutes the vision of warranty law espoused by Philip Morris. Philip Morris suggests that Plaintiffs’ warranty claims fail if consumers have some awareness that cigarettes are dangerous. This Court rejected that position in Codling, recognizing the difficulty consumers face in discerning what dangers are posed by modern products. Codling thus implied a duty of “merchantability” on manufacturers, extending to end users of their products, whereby they must produce “useful, attractive, but safe products.” Id. Denny recast that inquiry as a question of whether the product is “minimally safe” for its intended use. Philip Morris has offered no evidence at all meeting that standard, let alone refuting Plaintiffs’ contrary proofs. Absent such a showing, whether Marlboros are “minimally safe” remains a jury question. Accordingly, the Court below erred in dismissing Plaintiffs’ breach of implied warranty claims. CONCLUSION For the reasons stated above, Plaintiffs-Appellants respectfully request that this Court hold that under New York law, 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, may pursue an independent equitable cause of action for medical monitoring for such a disease. {00014810} 69 Plaintiffs-Appellants respectfully request that this Court hold that the elements of a medical monitoring cause of action are that: (1) the defendant’s negligence (or other actionable misconduct) (2) was a substantial factor in causing (3) the plaintiff to become exposed to a hazardous substance that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint. Plaintiffs also respectfully request that this Court hold that because Plaintiffs are seeking equitable relief, their cause of action is governed by the six-year statute of limitations in C.P.L.R. § 213(1), and that such relief may take the form of creation of a medical monitoring fund sufficient to pay for the remedy, with unused funds reverting back to the tortfeasor. Plaintiffs also respectfully request that this Court hold that Plaintiffs’ cause of action accrues when: (1) there is a substantial increase in the risk of cancer, and (2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method oflung cancer screening or surveillance. In the alternative, if this Court views medical monitoring as a form of equitable relief rather than an independent cause of action, Plaintiffs respectfully request that it correct the federal courts' misapprehension of New York law, by holding that: (I) Plaintiffs' claims sounding in negligence and strict liability were timely commenced under the continuing tort doctrine, as Philip Morris' misconduct was ongoing in nature, and Plaintiffs are seeking equitable relief, (2) Plaintiffs claims sounding in negligence and strict liability were also timely commenced because medical monitoring damages compensate the plaintiff for the quantifiable costs of periodic medical examinations reasonably necessary for the early detection and treatment of latent injuries caused by the Defendant's misconduct, and there was no efficacious remedy which Plaintiffs might have sought until the time of the suit's commencement, and (3) Plaintiffs have adequately pleaded and offered proofs supporting a timely breach of wananly claim under New York law. Dated: {00014810} New York, New York September 30, 2013 Respe t~jy Su t.-, Steven J. Phillips Victoria E. Phillips Aryeh L. Taub 70 {00014810} 71 Lisa W. Davis Attorneys for Plaintiffs Marcia L. Caronia, Linda McAuley, and Arlene Feldman Phillips & Paolicelli 380 Madison Avenue, 24th Floor New York, NY 10017 p. (212) 388-5100 f. (212) 388-5200 sphillips@p2law.com vphillips@p2law.com ataub@p2law.com