Marcia L. Caronia, Linda McAuley and Arlene Feldman, Appellants,v.Philip Morris USA, Inc., Respondent.

Brief

N.Y.May 30, 2013

To Be Argued By: KENNETH J. PARSIGIAN Time Requested: 30 Minutes CTQ-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. On Questions Certified by the United States Court of Appeals for the Second Circuit (USCOA Docket No.11-0316-cv) BRIEF FOR DEFENDANT-RESPONDENT d KENNETH J. PARSIGIAN LATHAM & WATKINS LLP John Hancock Tower, 20th Floor 200 Clarendon Street Boston, Massachusetts 02116 (617) 880-4510 Counsel for Defendant-Respondent Date Completed: September 12, 2013 CORPORATE DISCLOSURE STATEMENT Altria Group, Inc. (stock symbol: MO) is the parent corporation of Defendant-Respondent Philip Morris USA Inc. Altria Group, Inc., is a publicly held company and owns more than 10% of Philip Morris USA Inc. ii STATUS OF RELATED CASES There are no related cases. iii TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT .......................................................... i STATUS OF RELATED CASES ............................................................................. ii TABLE OF AUTHORITIES .................................................................................... vi CERTIFIED QUESTIONS PRESENTED ................................................................ 1 INTRODUCTION ..................................................................................................... 1 FACTUAL AND PROCEDURAL BACKGROUND .............................................. 3 A. Plaintiffs’ Case ...................................................................................... 3 B. The District Court’s Dismissal Of Plaintiffs’ Claims ........................... 5 C. The Second Circuit’s Decision .............................................................. 7 SUMMARY OF ARGUMENT ................................................................................. 9 ARGUMENT ........................................................................................................... 12 I. This Court Should Not Create A Cause Of Action For Medical Monitoring ..................................................................................................... 12 A. A Medical Monitoring Cause Of Action Conflicts With This Court’s Precedents And Risks Disastrous Policy Consequences ....... 12 1. A Medical Monitoring Cause Of Action Would Circumvent The Bedrock Physical Injury Requirement ........... 13 2. A Medical Monitoring Cause Of Action Would Open The Floodgates To Unlimited Liability ............................................ 18 3. Existing Laws Obviate The Need For A New Cause Of Action ........................................................................................ 21 4. Legislative Deference Is Particularly Warranted Here............ 25 iv Page B. The United States Supreme Court And States’ Highest Courts Have Resoundingly Rejected Medical Monitoring As A Cause Of Action ............................................................................................. 27 1. This Court Should Follow The Lead Of A Clear Majority Of Courts ................................................................................... 27 2. Even Courts That Allow Medical Monitoring Would Not Do So Here ................................................................................ 32 3. Donovan v. Philip Morris USA, Inc. Is Erroneous ................... 35 II. Any Medical Monitoring Cause Of Action Should Be Carefully Tailored To Avoid Uncabined Liability ....................................................................... 39 A. Any Cause Of Action Should Be In Law, Not In Equity .................... 39 B. The Elements of Any Such Cause of Action Should Be Narrowly Tailored ............................................................................... 41 1. Negligence ................................................................................. 42 2. But-For Causation .................................................................... 42 3. A Medical Consensus Recommends Medical Monitoring For A Plaintiff ........................................................................... 47 4. Defendants Should Be Liable Only For Medical Monitoring That A Plaintiff Actually Receives ......................... 49 III. Any Medical Monitoring Claim Recognized By This Court Should Be Subject To A Three-Year Limitations Period That Accrues When A Plaintiff Actually Suffers An Increased Risk Of Disease ............................. 51 A. A Three-Year Limitations Period Should Apply ................................ 51 B. Any Medical Monitoring Claim Recognized By This Court Should Accrue At The Time Of An Alleged Increased Risk Of Disease ................................................................................................. 51 1. Claims Accrue On The Date Plaintiffs Allegedly Suffered An “Injury” ............................................................................... 52 v Page 2. Plaintiffs’ Accrual Rule Contradicts This Court’s Precedents And Is Unworkable ................................................. 54 3. The Continuing-Wrong Doctrine Is Irrelevant ......................... 61 IV. This Court Should Reject Plaintiffs’ Invitation To Opine On Issues Already Decided By The Second Circuit ...................................................... 63 A. The Only Issue Before This Court Is The Viability Of A Medical Monitoring Cause Of Action Under New York Law ........... 63 B. Plaintiffs’ Arguments For Reversing The Second Circuit’s Rulings Are Meritless .......................................................................... 66 CONCLUSION ........................................................................................................ 70 vi TABLE OF AUTHORITIES Page(s) CASES 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280 (2001) ......................................................................................... 14 Abusio v. Consol. Edison Co. of New York, Inc., 656 N.Y.S.2d 371 (2d Dep’t 1997) ..................................................................... 40 Ackerman v. Price Waterhouse, 84 N.Y.2d 535 (1994) ............................................................................ 52, 56, 60 Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545 (2008) ................................................................................... 34, 59 Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325 (1981) ......................................................................................... 66 Alsteen v. Wauleco, Inc., 802 N.W.2d 212 (Wis. Ct. App. 2011) ............................................................... 31 Arias v. DynCorp, 2013 WL 821168 (D.D.C. Feb. 19, 2013) .......................................................... 31 Askey v. Occidental Chemical Corp., 477 N.Y.S.2d 242 (4th Dep’t 1984) ....................................................... 15, 16, 40 Avila v. CNH America LLC, 2007 WL 2688613 (D. Neb. Sep. 10, 2007) ....................................................... 31 Ayers v. Twp. of Jackson, 106 N.J. 557 (1987) ...................................................................................... 31, 34 Badillo v. Am. Brands, Inc., 117 Nev. 34 (2001) ....................................................................................... 30, 32 Baity v. Gen. Elec. Co., 927 N.Y.S.2d 492 (4th Dep’t 2011) ................................................................... 40 Barenboim v. Starbucks Corp., --- N.E.2d ----, 2013 WL 3197602 (N.Y. Jun. 26, 2013) ................................... 65 vii Page(s) Barnes v. Am. Tobacco Co. Inc., 984 F. Supp. 842 (E.D. Pa. 1997) ................................................................. 53, 57 Bellevue South Assocs. v. HRH Constr. Corp., 78 N.Y.2d 282 (1991) ......................................................................................... 14 Blanco v. AT&T Co., 90 N.Y.2d 757 (1997) ....................................................................... 15, 52, 56, 59 Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc., 344 F.3d 211 (2d Cir 2003) ................................................................................ 64 Bourgeois v. AP Green Indus., Inc., 716 So. 2d 355 (La. 1998) .................................................................................. 31 Bower v. Westinghouse Elec. Corp., 206 W. Va. 133 (1999) ........................................................................... 32, 34, 36 Boyle v. Kelley, 42 N.Y.2d 88 (1977) ........................................................................................... 39 Britt v. Legal Aid Soc’y, 95 N.Y.2d 443 (2000) ......................................................................................... 57 Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ariz. Ct. App. 1988) ................................................................ 31, 57 Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515 (D. Kan. 1995) ...................................................................... 31 State ex rel. Chemtall, Inc. v. Madden, 607 S.E.2d 772 (W. Va. 2004) ............................................................................ 54 City of Houston v. Hill, 482 U.S. 451 (1987) ............................................................................................ 63 Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449 (1995) ......................................................................................... 17 Cook v. Rockwell Int’l Corp., 755 F. Supp. 1468 (D. Colo. 1991) ..................................................................... 31 viii Page(s) Cull v. Cabot Corp., 61 Pa. D. & C. 4th 343 (Pa. Ct. Com. Pl. 2001) ........................................... 37, 42 Curl v. Am. Multimedia, Inc., 654 S.E.2d 76 (N.C. Ct. App. 2007) ................................................................... 31 Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995) ......................................................................................... 69 Derdiarian v. Felix Contracting Co., 51 N.Y.2d 308 (1980) ......................................................................................... 47 Donovan v. Philip Morris USA Inc., 268 F.R.D. 1 (D. Mass. 2010) ............................................................................. 38 Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009) ..................................................................................passim Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601 (W.D. Wash. 2001) ................................................................... 31 Dunham v. Canisteo, 303 N.Y. 498 (1952) ........................................................................................... 47 Engel v. CBS, Inc., 93 N.Y.2d 195 (1999) ............................................................................. 53, 66, 70 Exxon Mobil Corp. v. Albright, 2013 WL 4052435 (Md. June 25, 2013), reconsideration granted on other grounds, 2013 WL 4052630 (June 25, 2013) ............................................... 32, 44 Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984) ............................................................................ 37 Gargano v. Philip Morris USA, Inc., 2011 WL 2445869 (S.D. Fla. June 20, 2011) ............................................... 36, 44 Giordano v. Market Am., Inc., 15 N.Y.3d 590 (2010) ................................................................................... 15, 18 Gonzalez v. Delta Int’l Mach. Corp., 763 N.Y.S.2d 844 (2d Dep’t 2003) ..................................................................... 43 ix Page(s) Goodall v. United Illuminating, 1998 WL 914274 (Conn. Super. Ct. Dec. 15, 1998) .......................................... 31 Hall v. UPS of Am., Inc., 76 N.Y.2d 27 (1990) ..................................................................................... 12, 13 Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993) ............................................................................passim Henry v. Dow Chem. Co., 473 Mich. 63 (2005) ...................................................................18, 19, 21, 29, 30 Hinton v. Monsanto, 813 So. 2d 827 (Ala. 2001) ........................................................................... 29, 30 Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989) ......................................................................................... 26 In re All Pending Chinese Drywall Cases, 2010 WL 7378659 (Va. Cir. Ct. Mar. 29, 2010) ................................................ 31 In re Paoli R.R. Yard PCB Litig. (Paoli II), 35 F.3d 717 (3d Cir. 1994) ................................................................................. 44 In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005) ....................................................................... 31 In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133 (E.D. La. 2002) ......................................................................... 47 In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61 (S.D.N.Y. 2002) .......................................................................... 47 In re Southeast Banking Corp., 93 N.Y.2d 178 (1999) ............................................................................. 53, 64, 66 In re Tobacco Litig., 600 S.E.2d 188 (W.Va. 2004) ....................................................................... 47, 57 In the Matter of N.Y. Cnty. DES Litig., 89 N.Y.2d 506 (1997) ............................................................................. 15, 17, 18 x Page(s) Izzarelli v. R.J. Reynolds Tobacco Co., No. 11-3865, slip op. (2d Cir. Sept. 10, 2013) ................................................... 66 Jacobus v. Colgate, 217 N.Y. 235 (1916) ........................................................................................... 68 Jensen v. Gen. Elec. Co., 82 N.Y.2d 77 (1993) ......................................................................... 59, 61, 62, 63 Kramer v. Phoenix Life Ins. Co., 15 N.Y.3d 539 (2010) ......................................................................................... 64 LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701 (1995) ............................................................................. 52, 55, 68 Lamping v. Am. Home Prods., Inc., 2000 WL 35751402 (Mont. 4th Dist. Ct. Feb. 2, 2000) ..................................... 31 Lichtyger v. Franchard Corp., 18 N.Y.2d 528 (1966) ......................................................................................... 39 Lowe v. Philip Morris USA, Inc., 142 P.3d 1079 (Or. Ct. App. 2006) ..................................................................... 57 Lowe v. Philip Morris USA, Inc., 344 Or. 403 (2008) ........................................................................................ 29, 30 Madden v. Creative Servs., Inc., 84 N.Y.2d 738 (1995) ....................................................................... 12, 13, 19, 21 Mann v. CSX Transp., Inc., 2009 WL 3766056 (N.D. Ohio Nov. 10, 2009) .................................................. 31 Marden v. Maurice Villency, Inc., 815 N.Y.S.2d 501 (1st Dep’t 2006) .................................................................... 43 McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir. 1997) ............................................................................... 63 McCormick v. Halliburton Co., 895 F. Supp. 2d 1152 (W.D. Okla. 2012) ........................................................... 31 xi Page(s) Mehl v. Canadian Pac. Ry., 227 F.R.D. 505 (D.N.D. 2005) ........................................................................... 31 Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647 (Del. 1984) ................................................................................... 31 Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997) .....................................................................................passim Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007) ......................................................................... 32, 33 Miranda v. DaCruz, 2009 WL 3515196 (R.I. Super. Ct. Oct. 26, 2009) ............................................ 31 MRI Broadway Rental, Inc. v. U.S. Min. Prods. Co., 92 N.Y.2d 421 (1998) ............................................................................. 52, 55, 56 Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293 (1983) ............................................................................. 12, 13, 25 Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980) ......................................................................................... 47 Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135 (2003) ............................................................................................ 18 Norwood v. Raytheon Co., 414 F. Supp. 2d 659 (W.D. Tex. 2006) .............................................................. 31 O’Brien v. City of Syracuse, 54 N.Y.2d 353 (1981) ......................................................................................... 26 Ortega v. City of New York, 9 N.Y.3d 69 (2007) ................................................................................. 12, 13, 14 Osarczuk v. Associated Universities, Inc., 830 N.Y.S.2d 711 (2d Dep’t 2007) ..................................................................... 16 Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290 (N.D. Ga. 2005) ............................................................... 31 xii Page(s) Paulson v. 3M Co., 2009 WL 229667 (Minn. Dist. Ct. Jan. 16, 2009) .............................................. 31 Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1 (Miss. 2007) ............................................................................. 29, 30 Petito v. A.H. Robins Co., 750 So. 2d 103 (Fla. Dist. Ct. App. 1999) .......................................................... 31 Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629 (7th Cir. 2007) .............................................................................. 31 Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993) .................................................................. 31, 32, 34, 45 Ramirez v. Sears, Roebuck & Co., 729 N.Y.S.2d 503 (2d Dep’t 2001) ..................................................................... 43 Ratliff v. Mentor Corp., 569 F. Supp. 2d 926 (W.D. Mo. 2008) ............................................................... 33 Redland Soccer Club, Inc., v. Dep’t of the Army, 696 A.2d 137 (Pa. 1997) ................................................................... 31, 33, 34, 45 Rooney v. Tyson, 91 N.Y.2d 685 (1998) ......................................................................................... 64 Rosmer v. Pfizer, Inc., 2001 WL 34010613 (D.S.C. Mar. 30, 2001) ...................................................... 31 Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329 (1987) ......................................................................................... 12 SafeCard Servs., Inc. v. Am. Express Travel Related Servs. Co., 203 A.D.2d 65 (1st Dep’t 1994) ......................................................................... 61 Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667 (1982) ......................................................................................... 14 Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287 (1936) ........................................................................................... 16 xiii Page(s) Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212 (1963) ................................................................................... 16, 17 Sheehan v. City of New York, 40 N.Y.2d 496 (1976) ......................................................................................... 46 Sinclair v. Merck & Co., Inc., 195 N.J. 51 (2008) ........................................................................................ 33, 34 Snyder v. Town Insulation, Inc., 81 N.Y.2d 429 (1993) ..................................................................................passim People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105 (2008) ......................................................................................... 61 Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp. 2d 833 (N.D. Ill. 2008) .................................................................. 31 Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568 (6th Cir. 2006) .............................................................................. 31 Thornton v. Roosevelt Hosp., 47 N.Y.2d 780 (1979) ......................................................................................... 17 Tobin v. Grossman, 24 N.Y.2d 609 (1969) ................................................................................... 12, 13 Trabal v. Queens Surgi-Ctr., 8 A.D.3d 555 (2d Dep’t 2004) ............................................................................ 46 Tri-State Empl. Servs., Inc. v Mountbatten Sur. Co., Inc., 295 F.3d 256 (2d Cir. 2002) ............................................................................... 66 Trombetta v. Conkling, 82 N.Y.2d 549 (1993) ......................................................................................... 13 Vigilant Ins. Co. of Am. v. Hous. Auth. of City of El Paso, Tex., 87 N.Y.2d 36 (1995) ..................................................................................... 52, 55 Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d 102 (1983) ................................................................................... 45, 66 xiv Page(s) Williams v. Walsh, 558 F.2d 667 (2d Cir. 1977) ............................................................................... 55 Witherspoon v. Philip Morris Inc., 964 F. Supp. 455 (D.D.C. 1997) ......................................................................... 37 Wood v. Wyeth-Ayerst Labs., Div. of Am. Home Prods., 82 S.W.3d 849 (Ky. 2002) ................................................................ 26, 27, 29, 30 Xavier v. Philip Morris USA, Inc., 2010 WL 3956860 (N.D. Cal. Oct. 8, 2010) ...................................................... 36 Yondola v. Trabulsy, 22 A.D.3d 483 (2d Dep’t 2005) .......................................................................... 45 Statutory and Constitutional Provisions 26 U.S.C. § 5000A ................................................................................................... 22 42 U.S.C. § 300gg-13............................................................................................... 22 La. Civ. Code Ann. art. 2315(B) .............................................................................. 31 N.Y. Const. art. 6, § 3(b)(9) ..................................................................................... 64 Other Authorities Black’s Law Dictionary (9th ed. 2009) ................................................................... 55 C.P.L.R. § 203(a) ..................................................................................................... 52 C.P.L.R. § 214(5) ..................................................................................................... 51 C.P.L.R. § 214-c(2) .................................................................................................. 51 Editorial, Mixed Blessings, N.Y. Times, Aug. 5, 2013 ............................................ 24 James Graves, “Medical” Monitoring for Non-Medical Harms: Evaluating the Reasonable Necessity of Measures to Avoid Identity Fraud After a Breach, 16 Rich. J. L. & Tech. 2 (2009) ............................................................................... 20 Jamie A. Grodsky, Genomics and Toxic Torts: Dismantling the Risk-Injury Divide, 59 Stan. L. Rev. 1671 (2007) .............................................................................. 20 xv Page(s) Claudia I. Henschke et al., Survival of Patients with Stage I Lung Cancer Detected on CT Screening, 355 New Eng. J. Med. 1763 (2006) ....................................... 58 W. Page Keeton et al., Prosser and Keeton on Torts § 41 (5th ed. 1984)…... 42, 46 Arvin Maskin et al., Medical Monitoring: A Viable Remedy for Deserving Plaintiffs or Tort Law’s Most Expensive Consolation Prize?, 27 Wm. Mitchell L. Rev. 521 (2000) .............................................................................................. 49 4 N.Y. Jur. 2d Appellate Review § 569 .................................................................... 64 73A N.Y. Jur. 2d Judgments § 418 .......................................................................... 61 86 N.Y. Jur. 2d Products Liability § 101 ................................................................. 66 14 N.Y. Prac., N.Y. Law of Torts § 8:6 ................................................................... 45 14 N.Y. Prac., New York Law of Torts § 6:3 .......................................................... 66 15 N.Y. Prac., New York Law of Torts § 16:3 ........................................................ 69 16 N.Y. Prac., N.Y. Law of Torts § 19:40 ............................................................... 26 16 N.Y. Prac., New York Law of Torts § 21:1 ........................................................ 14 16 N.Y. Prac., New York Law of Torts § 21:13.10 ................................................. 14 Recent Cases, Supreme Judicial Court of Massachusetts Recognizes Cause of Action for Medical Monitoring of Tobacco Users, 123 Harv. L. Rev. 1771 (2010) .................................................................................................................. 56 Restatement (Second) of Torts, §§ 431, 432 ........................................................... 46 Restatement (Third) of Torts, §§ 26, 27 .................................................................. 42 Victor E. Schwartz et al., Medical Monitoring: The Right Way and the Wrong Way, 70 Mo. L. Rev. 349 (2005) .................................................................. 49, 50 Sabrina Tavernise, Task Force Urges Scans for Smokers at High Risk, N.Y. Times, Jul. 30, 2013 ........................................................................................................ 23 U.S. Preventive Services Task Force, About the USPSTF, http://www.uspreventiveservicestaskforce.org/about.htm ................................. 22 xvi Page(s) U.S. Preventive Services Task Force, Screening for Lung Cancer: Draft Recommendation Statement (July 2013), http://www. uspreventiveservicestaskforce.org/draftrec.htm ........................................... 23, 58 U.S. Preventive Services Task Force,USPSTF A and B Recommendations, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm .............. 23 17A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4248 (3d ed.) .................................................................................................... 65 Herbert L. Zarov et al., A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?, 12 DePaul J. Health Care L. 1 (2009) .......... 24 1 CERTIFIED QUESTIONS PRESENTED On May 30, 2013, this Court accepted certification of the following questions: 1. Under New York law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, pursue an independent equitable cause of action for medical monitoring for such a disease? 2. If New York recognizes such an independent cause of action for medical monitoring, (a) What are the elements of that cause of action?, and (b) What is the applicable statute of limitations, and when does the cause of action accrue? INTRODUCTION Over the last several decades, this Court wisely has declined to create new causes of action when the disruptions to traditional common-law requirements would be too great, and the risk of ushering in unlimited liability for an undefined class of defendants too high. Creating an independent cause of action for medical monitoring would allow limitless numbers of plaintiffs to pursue expansive claims that involve no manifest injury or symptoms of illness. The bedrock requirement of New York tort law—that plaintiffs must prove some manifest physical injury— has endured because it predictably and effectively separates viable and unviable claims. If this Court jettisons that requirement, any company whose products ever conceivably exposed anyone to any “harmful,” potentially disease-causing substance could be liable for the indefinite costs of providing countless plaintiffs 2 with long-term medical monitoring—even though most plaintiffs concededly will never contract any disease, and even though screening may be medically indicated irrespective of defendants’ alleged misconduct. And if this new cause of action were coupled with a new accrual rule that allowed plaintiffs to sue long after they reached a threshold at which monitoring was medically advisable, such liability could be imposed well beyond any traditional limitations period. The ensuing flood of claims could overwhelm New York’s already overburdened courts. In this case alone, plaintiffs ask the court to spend years, if not decades, overseeing outreach to hundreds of thousands of individuals, managing the creation of informed consent procedures, quality control measures, and standardized record-keeping, as well as supervising the arrangement of primary-care visits and the establishment of a list of approved specialists. It is difficult to imagine a task less suited for the judiciary. Federal legislation also drastically reduces the need for a medical monitoring cause of action. Under the Affordable Care Act, all at-risk individuals will receive, free of charge, any preventive screening tests that a federal task force determines are effective and advisable. Determining whether a medical monitoring cause of action should provide plaintiffs with additional screening should be left to the Legislature, which can hold hearings and decide critical policy issues. Legislative deference is particularly warranted because of the difficult trade-offs 3 involved, which require deciding whether to prioritize recovery for asymptomatic plaintiffs now over actually ill plaintiffs later. This Court should follow the United States Supreme Court and the clear majority of other States’ highest courts that have rejected a medical monitoring cause of action, and should answer the first certified question in the negative, making it unnecessary to reach the second question. This Court should not turn New York into a magnet for new lawsuits by allowing a boundless cause of action that even the few States that allow medical monitoring claims would not endorse. FACTUAL AND PROCEDURAL BACKGROUND A. Plaintiffs’ Case In 2006, three longtime smokers—Marcia Caronia, Arlene Feldman, and Linda McAuley—brought this putative class action in federal district court against Philip Morris USA Inc. (“PM USA”). Plaintiffs, who exhibit no symptoms of any smoking-related disease, claim to represent a class of Marlboro cigarette smokers aged 50 or older who have smoked 20 “pack years.”1 Although plaintiffs now devote much of their brief to accusing PM USA of fraud relating to the health risks and addictiveness of cigarettes, Br. 8-14, those 1 As defined by plaintiffs, 20 “pack-years” is the equivalent of smoking one pack of Marlboro cigarettes per day for twenty years. Alternatively, this threshold could be satisfied by, for example, smoking two packs per day for ten years. See Br. 4 n.3. All references to “Br.” refer to plaintiffs’ opening brief in this Court. 4 allegations have no bearing on the merits of plaintiffs’ claims—none of which alleged fraud. Instead, the only allegedly wrongful conduct that plaintiffs pled is PM USA’s purported failure to manufacture a safer cigarette. The complaint defines a safer cigarette as one that does not increase plaintiffs’ risk of eventually developing lung cancer to the same extent as Marlboro cigarettes allegedly do, yet at the same time does not diminish the “enjoyment of the product as a matter of taste, nicotine delivery, or emotional effects.” A372-73, 380, 382-83 (Compl. ¶¶ 1, 12, 54, 64, 68); accord Br. 14-15.2 Plaintiffs’ alleged injury—insofar as they claim any injury—is that medical professionals recommend that they receive medical monitoring based on their allegedly heightened risk of lung cancer from smoking “excessively carcinogenic” cigarettes, and plaintiffs should not bear the costs of those tests. Br. 16; accord A389-91 (Compl. ¶¶ 109-18), A472-73. These allegations formed the basis of plaintiffs’ negligence, strict liability, and implied breach of warranty claims, all of which sought a single, purportedly “equitable” remedy: long-term monitoring using low-dose computed tomography (LDCT) scans to screen for lung cancer. Br. 15, 23. After most of these claims were dismissed as time-barred, plaintiffs amended their complaint to allege a 2 Plaintiffs contend that PM USA in fact manufactured the cigarette they allege had the “safer” alternative design. Br. 15. Notably, plaintiffs were uninterested in smoking any type of allegedly “safer” cigarettes despite their availability. A306, 321-22, 339-40. 5 freestanding, “equitable” medical monitoring cause of action that sought the same remedy based on the same allegations. Id.; A389-91 (Compl. ¶¶ 109-14). B. The District Court’s Dismissal Of Plaintiffs’ Claims On February 11, 2010, the district court dismissed plaintiffs’ negligence and strict liability claims as time-barred under any conceivable accrual rule or statute of limitations. The court explained that “[b]oth parties agree that the injury in this action is the increased risk of developing lung cancer as a result of smoking Marlboro cigarettes for twenty pack-years.” A359, A361. If the “date of discovery” of the injury rule governed accrual, plaintiffs’ claims were time-barred because their testimony established their “awareness of an increased cancer risk” well outside the limitations period. A358-59. If the common-law accrual rule instead governed, the court explained, plaintiffs’ claims alternately accrued when all the necessary elements of plaintiffs’ strict liability and negligence claims could be asserted. In this case, those claims accrued by 1996, when all named plaintiffs had smoked at least 20-pack-years. A362. Because the longest possible limitations period was six years, plaintiffs’ claims were time-barred. Id. The court rejected plaintiffs’ argument that their claims accrued only when LDCT screening became available. The court explained that plaintiffs “have not . . . brought a ‘claim’ for medical surveillance—they have brought strict 6 liability and negligent design defect claims,” and “the availability of [screening] is irrelevant to the accrual of [a] plaintiff’s claim.” A360-61. However, the district court invited plaintiffs to amend their complaint “to assert a cause of action for medical monitoring.” A368. The court noted that whether New York law allows such a cause of action “has not been addressed by the New York Court of Appeals.” Id. Plaintiffs amended their complaint to add an “equitable” medical monitoring cause of action. A389-91 (Compl. ¶¶ 109-18). PM USA moved to dismiss this novel claim and also argued for summary judgment on the breach of implied warranty claim. On January 13, 2011, the district court granted both motions. The court “recognize[d] that the wisdom of . . . decisions expanding traditional theories of tort liability to permit asymptomatic plaintiffs to recover for medical monitoring is highly debatable” and likely to “render[] the class of potential claimants (and payors) nearly limitless.” A408. Nonetheless, in a “close” call, the court predicted that New York law would allow a medical monitoring cause of action that accrued when LDCT screening became the medical standard of care. A409, 411. The court concluded, however, that plaintiffs could not prevail on a stand- alone medical monitoring claim, because they failed to “plead and prove that Philip Morris’s failure to produce and market a non-defective cigarette is the reason that the plaintiffs must now secure medical monitoring that includes LDCT scans.” 7 A416. The court stressed that plaintiffs’ pleadings “concede that even had Philip Morris not acted tortiously . . . plaintiffs would still have been exposed to highly carcinogenic cigarettes,” and thus still could need monitoring under plaintiffs’ theory. A417. The court also granted summary judgment on the implied warranty claim, because plaintiffs could not show that Marlboro cigarettes are unfit for the ordinary purposes for which they are used. A419-22. The court explained that a product is fit for ordinary purposes if it satisfies consumer expectations as to what the product normally will do. A420. Because consumers have known for decades that “cigarettes, when used normally, put people at risk of developing lung cancer,” there could be no breach of implied warranty. A420-21.3 C. The Second Circuit’s Decision The Second Circuit “affirm[ed] the judgment of the district court to the extent that it dismissed plaintiffs’ claims of negligence, strict liability, and breach of the implied warranty of merchantability.” A746. In holding that the negligence and strict liability claims were untimely, the court affirmed the district court’s finding that “‘[b]oth parties agree[d] that the injury in this action is the increased risk of developing lung cancer as a result of smoking Marlboro cigarettes for 3 Although plaintiffs’ motion for class certification was mooted by the court’s dismissal of all claims, the district court “note[d] its concern that individual issues . . . would likely defeat any effort to certify a class in this litigation.” A422 n.5. 8 twenty pack-years.’” A700; see also A710-11. The court thus held that because that injury occurred at the latest in 1996, plaintiffs’ claims accrued well outside any possible statute of limitations. A711. The court also dismissed plaintiffs’ breach of implied warranty claim, reasoning that because plaintiffs conceded that they knew the risks of smoking cigarettes, Marlboros contained no implied warranty that could have been breached. A718-20. With respect to the proposed free-standing claim for medical monitoring, the Second Circuit determined that certification to this Court was warranted, and thus did not review the district court’s dismissal of that claim. The Second Circuit noted that “[n]one of the New York courts has directly addressed the question of whether the State recognizes an independent cause of action for medical monitoring, and the answer to this question, which has the capacity to resolve this litigation, is unclear.” A744. The court explained that because “the statute of limitations bars plaintiffs’ pursuit of their traditional claims for negligence and strict products liability,” even if medical monitoring were available as a legal remedy, it “would be immaterial to claims that are time-barred.” Id. Only if “New York recognizes an independent cause of action for medical monitoring, and if . . . that claim is viewed as accruing when an effective monitoring test becomes available” might plaintiffs have a timely claim. Id. The court thus certified the 9 questions of “whether New York recognizes such a cause of action” for medical monitoring, what its elements would be, and when it would accrue. A746. SUMMARY OF ARGUMENT The proposed medical monitoring cause of action vividly showcases all the reasons why this Court has long declined to allow new causes of action that sidestep the foundations of tort law or risk open-ended liability. Such an action would eviscerate the physical injury requirement, a cornerstone of New York tort law. And by eliminating the injury requirement, a medical monitoring cause of action also would risk open-ended liability for a staggering number of businesses. As the United States Supreme Court recognized in declining to create such a cause of action, “tens of millions of individuals may have suffered exposure to substances that might justify some form of substance-exposure-related medical monitoring.” Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 442 (1997). If companies can be held liable for such monitoring, the prospect of immense and unending liability is unacceptably high. These grave consequences are not counterbalanced by a need to ensure that individuals have access to effective medical monitoring. The federal government is already focused on providing all at-risk Americans with effective and free preventive screening. A federal task force already evaluates screening methods for a wide array of serious diseases and decides whether these methods are sufficiently 10 effective and beneficial to be recommended for at-risk groups. If the task force recommends a particular form of screening, the Affordable Care Act guarantees that all at-risk individuals can obtain that screening for free. Even the test that plaintiffs seek here—LDCT screening for lung cancer—will be free for at-risk smokers if the task force finalizes its recent recommendation. And if the task force or other national organizations reject a particular screening method, that method presumably does not reflect the standard of care. Courts should not get ahead of national medical opinion on unaccepted screening methods. All of these concerns likewise underscore why this Court should defer to the Legislature, which can decide whether it is worth paying the price of transforming the common law after examining these policy consequences and gauging public sentiment. A medical monitoring cause of action also raises serious policy issues that demand legislative resolution. For example, allowing asymptomatic plaintiffs to recover for medical monitoring today could bar suits by plaintiffs who later actually contract an illness, either due to this State’s claim preclusion rules or because many businesses may lack the resources to pay for an avalanche of claims. This Court should follow the lead of the United States Supreme Court and a vast majority of other States’ highest courts that have rejected claims for medical monitoring. The Supreme Court in Buckley held that the threat of indefinite liability was reason enough to reject a federal-law medical monitoring cause of 11 action. Since Buckley, a clear majority of States’ highest courts have refused to endorse any form of medical monitoring (either as a remedy or cause of action) because they see the physical injury requirement as critical to the stability of tort law. New York should not become a litigation haven for plaintiffs in search of the most expansive possible lawsuit. In sum, the scales overwhelmingly weigh against creating a new cause of action for asymptomatic plaintiffs. If this Court nonetheless does so, it should allow only a legal action, not an equitable one. Moreover, plaintiffs should have to prove that the defendant’s negligence was the but-for cause of plaintiffs’ undue exposure to a hazardous substance and of plaintiffs’ medically indicated need for monitoring. Plaintiffs must also show that a national consensus supports their desired form of monitoring for individuals with plaintiffs’ characteristics, and that such monitoring is actually indicated for a particular plaintiff. Plaintiffs must further show that they would actually use the monitoring. If this Court were to recognize a medical monitoring cause of action, it should also hold that the cause of action accrues when a plaintiff faces a heightened risk of a serious illness—not when their preferred type of screening becomes available and medically accepted. Finally, this Court should reject plaintiffs’ audacious attempt to expand the scope of the certified questions to obtain review of settled issues that the federal courts—plaintiffs’ chosen forum—thoroughly reviewed and rejected. 12 ARGUMENT I. This Court Should Not Create A Cause Of Action For Medical Monitoring A. A Medical Monitoring Cause Of Action Conflicts With This Court’s Precedents And Risks Disastrous Policy Consequences Time and again, this Court has rejected the creation of new causes of action, particularly ones that dispense with traditional common-law standards. Ortega v. City of New York, 9 N.Y.3d 69, 80 (2007); see also Madden v. Creative Servs., Inc., 84 N.Y.2d 738, 747 (1995). Moreover, “New York courts have been reluctant to embrace claims that rely on hypothetical theories or speculative assumptions about the nature of the harm incurred or the extent of plaintiff’s damages.” Ortega, 9 N.Y.3d at 81. Those claims carry “the potential for vast, uncircumscribed liability.” Madden, 84 N.Y.2d at 746; see also Tobin v. Grossman, 24 N.Y.2d 609, 616-18 (1969). This Court also has rejected new causes of action when sufficient remedies already exist to deter a wrong or “appropriately compensate” for an injury. Ortega, 9 N.Y.3d at 79; see also Madden, 84 N.Y.2d at 747; Hall v. UPS of Am., Inc., 76 N.Y.2d 27, 34-35 (1990). This Court’s refusal to “alter [its] long-settled rule[s]” and create new causes of action is underpinned by its “opinion that such a significant change in our law is best left to the Legislature.” Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 300-01 (1983); see also Hall, 76 N.Y.2d at 34; Sabetay v. Sterling Drug, Inc., 69 13 N.Y.2d 329, 336 (1987). And this Court has long held that these principles trump plaintiffs’ assertion that a cause of action must spring to address a “wrong without a remedy,” Br. 27, a notion that this Court has dismissed as “an ideal limited perforce by the realities of this world.” Tobin, 24 N.Y.2d at 619; see also Ortega, 9 N.Y.3d at 78-79; Trombetta v. Conkling, 82 N.Y.2d 549, 554 (1993). For instance, this Court unanimously rejected a new cause of action for third-party negligent spoliation of evidence, even though other jurisdictions allowed it. Ortega, 9 N.Y.3d at 78-79. This Court likewise unanimously rejected a cause of action for “third-party intrusions on attorney-client confidences” despite the “supervening societal importance” of those confidences. Madden, 84 N.Y.2d at 746. And this Court rejected new causes of action to address the misuse of lie detector tests, Hall, 76 N.Y.2d at 34, and to remedy the wrongful discharge of an at-will employee, Murphy, 58 N.Y.2d at 300-01. In each case, the potential disruptions to the common law, the risk of unlimited liability, the availability of alternative solutions to redress the alleged harm, or the desirability of legislative deference outweighed the notion that plaintiffs’ wrongs required remedies. These principles decisively cut against creating a medical monitoring cause of action. 1. A Medical Monitoring Cause Of Action Would Circumvent The Bedrock Physical Injury Requirement a. Few new causes of action would distort the common law like a medical monitoring claim for asymptomatic plaintiffs. This cause of action opens the door 14 to claims by those who “cannot meet the traditional . . . standards at the foundation of our common-law tort jurisprudence”—namely, the physical injury requirement. Ortega, 9 N.Y.3d at 80. As plaintiffs acknowledge, medical monitoring plaintiffs “do not allege . . . any form of cognizable bodily injury which would give rise to a personal injury claim.” Br. 18. Here, plaintiffs “do not have lung cancer” or “any smoking-related symptoms or disease,” and “[t]hey do not claim to have suffered physically or mentally.” Id. Indeed, plaintiffs suggest they did not and need not suffer any injury at all. See id. at 18-19, 62. These concessions should end the matter. A plaintiff may recover for only “the actual harm, detriment, loss or injury the plaintiff sustains.” 16 N.Y. Prac., New York Law of Torts § 21:1. That harm requires manifest physical effects, not a theoretical economic harm like the cost of monitoring. New York has never accepted “economic loss” as a cognizable injury in tort, and holds that “a plaintiff who has sustained an economic loss, but has not sustained any injury to person or property, is limited to recovery in contract.” Id. § 21:13.10; accord Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 669 (1982), rev’g on dissent at 439 N.Y.S.2d 933, 937-41 (1st Dep’t 1981) (Silverman, J., dissenting); see also 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 288 n.1 (2001); Bellevue South Assocs. v. HRH Constr. Corp., 78 N.Y.2d 282, 291, 294-95 (1991). 15 In cases involving exposure to a harmful substance that only later may produce illness, recovery is limited to an “appreciable injury” that “manifest[s] itself . . . some time after (and in many cases significantly after) initial exposure to the product.” Blanco v. AT&T Co., 90 N.Y.2d 757, 771 (1997). Exposure to a harmful substance is not such an “injury,” and is fundamentally distinct from the ensuing “injury” that must form the basis of a claim. “Injury” means “discernible bodily symptoms,” “manifestations of exposure,” “the condition on which the claim was based,” “the resulting illness,” and “the manifestations or symptoms of the latent disease that the harmful substance produced.” In the Matter of N.Y. Cnty. DES Litig., 89 N.Y.2d 506, 512-14 (1997); see also Giordano v. Market Am., Inc., 15 N.Y.3d 590, 599-600 (2010) (referring to “injur[ies]” that appeared after the “period of latency” following exposure). b. Plaintiffs argue that their proposed cause of action is “[c]onsistent [w]ith [e]xisting New York [l]aw” based on lower court decisions following Askey v. Occidental Chemical Corp., 477 N.Y.S.2d 242, 246 (4th Dep’t 1984). Br. 44; see also id. at 46-48 (citing decisions following Askey). But as the Second Circuit observed, those decisions consider medical monitoring only as a legal remedy for traditional torts, constrained by traditional accrual rules—not an expansive new 16 cause of action involving long-term judicial oversight of a medical surveillance program and novel accrual rules that would resurrect stale claims. A744.4 Moreover, Askey deemed exposure to a toxic substance a recoverable injury based on a flawed reading of this Court’s decision in Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287 (1936). Askey interpreted Schmidt as holding “that a plaintiff has a cause of action immediately upon exposure to a foreign substance and can recover all damages which he can show resulted or ‘would result therefrom’, even though at the time the action is commenced no serious damage to the plaintiff has developed.” 477 N.Y.S.2d at 247. Askey thus inferred that an injury occurs the moment that plaintiffs are exposed to a toxin. Id. But Schmidt did not redefine a recoverable “injury” to include the heightened risk of contracting a disease in the future due to toxic exposure. Quite the contrary, the plaintiff in Schmidt sought damages for the pneumoconiosis he had already contracted, allegedly due to inhaling toxic silicone dust. 270 N.Y. at 297, 300. Plaintiffs in subsequent cases following Schmidt likewise sought recovery for diseases they already suffered, such as “carcinoma requiring the removal of an eye” due to a carcinogenic implant, Schwartz v. Heyden Newport 4 Osarczuk v. Associated Universities, Inc., 830 N.Y.S.2d 711 (2d Dep’t 2007), referred to a “cause of action seeking medical monitoring and other injunctive relief.” Id. at 715. But that language summarized how plaintiffs portrayed their claims. The decision does not suggest that the court considered medical monitoring an equitable or a free-standing cause of action. 17 Chem. Corp., 12 N.Y.2d 212, 215 (1963); and cancer resulting from a thorium dioxide injection, Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 781 (1979); see also In the Matter of N.Y. Cnty. DES Litig., 89 N.Y. at 513. No plaintiff sought redress for the speculative consequences of their exposure, and these cases confirm that the “injury” is any ultimate physical illness. In any event, the Schmidt line of cases involved only the application of New York’s accrual rules. The question in Schmidt thus was “how accrual should be determined when an injury,” i.e., plaintiff’s carcinoma, “was latent and went undiscovered until long after exposure.” Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 433 (1993); see also Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 451-52 (1995). Schmidt established the legal fiction that for statute of limitations purposes, the date an “injury” first occurred is the date of exposure or discovery, not the date when symptoms of illness appeared. Consorti, 86 N.Y. at 451-52; Schwartz, 12 N.Y.2d at 217-18. Schmidt did not hold that plaintiffs had a cognizable injury as of that date. Indeed, Schmidt was criticized for perversely starting the limitations clock before plaintiffs had suffered a cognizable injury. Schwartz, 12 N.Y.2d at 217-18. Schmidt, and thus Askey, also are dubious precedents because the Legislature overruled Schmidt in favor of a rule that claims accrue when physical injuries from exposure appear (or should have been 18 discovered). Giordano, 15 N.Y.3d at 597-98; In the Matter of N.Y. Cnty. DES Litig., 89 N.Y.2d at 513. Even if Askey controlled, plaintiffs cannot have it both ways. If, under Askey, they suffered an injury, that injury occurred when their increased risk of cancer warranted monitoring—and their claims also accrued at that time. See infra at 51-53. 2. A Medical Monitoring Cause Of Action Would Open The Floodgates To Unlimited Liability The physical injury requirement guards against speculative claims that risk open-ended liability. As the United States Supreme Court recognized, the physical injury requirement “sharply distinguish[es] exposure-only plaintiffs from plaintiffs who suffer a disease” and thus “reduce[s] the universe of potential claimants to numbers neither unlimited nor unpredictable.” Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 156-57 (2003) (internal citations and quotation marks omitted). Physical injury creates “a clear standard by which judges can determine which plaintiffs have stated a valid claim,” relieving judges of “speculations about the extent to which a plaintiff possesses a cognizable legal claim,” and “reduc[ing] the risks of fraud.” Henry v. Dow Chem. Co., 473 Mich. 63, 76-77 (2005). A medical monitoring cause of action by asymptomatic plaintiffs contains no such limiting principle. Plaintiffs concede that “[t]he likelihood that any class member”—or even any medical monitoring plaintiff in any case—ever “will 19 experience [smoking-related disease and other harms] is speculative.” Br. 18. Allowing recovery by anyone who alleges that they were wrongfully exposed to a hazardous, illness-causing substance at levels that warrant medical screening, id. at 75, would threaten “vast, uncircumscribed liability” to an unprecedented degree. Madden, 84 N.Y.2d at 746. As the district court warned, abandoning the limiting principle of physical injury “renders the class of potential claimants (and payors) nearly limitless.” A408; accord Henry, 473 Mich. at 88. Modern life involves incidental exposure to so many toxic substances that “tens of millions of individuals” might qualify for “some form of substance-exposure-related medical monitoring.” Buckley, 521 U.S. at 442. Couple that with “uncertainty as to the amount of liability” for medical monitoring, and courts could face “both a ‘flood’ of less important cases (potentially absorbing resources better left available to those more seriously harmed), and the systemic harms that can accompany ‘unlimited and unpredictable liability’ (for example, vast testing liability adversely affecting the allocation of scarce medical resources).” Id. If plaintiffs can obtain lung cancer surveillance by showing that the brand of cigarettes they chose to smoke for decades should have been less carcinogenic, the prospect of endless liability in other contexts is easy to envision. Processed-food companies could face suit from consumers who seek to recover for heart disease monitoring if their blood pressure crosses a dangerous threshold. Diet soda 20 manufacturers risk lawsuits complaining that sugar substitutes carry unreasonably high cancer risks and demanding medical monitoring to ensure early detection. Cell phone manufacturers may face suits from users who complain that they need monitoring to detect the possible risk of cancer from minute amounts of microwave radiation. Coffee drinkers may sue Styrofoam cup manufacturers to detect the potentially carcinogenic effects of long-term exposure to plastics. Some plaintiffs have already sought to turn medical monitoring into data monitoring, so that any company that inadequately safeguards consumers’ personal data must pay for indefinite credit-score monitoring. See James Graves, “Medical” Monitoring for Non-Medical Harms: Evaluating the Reasonable Necessity of Measures to Avoid Identity Fraud After a Breach, 16 Rich. J. L. & Tech. 2, 4 (2009). If the potential plaintiffs are innumerable, so too are the number of companies that might suddenly face massive, unforeseen liability for long-term screening. The imposition of such liability is also unpredictable, because our understanding of when exposure to a particular substance may trigger disease is evolving constantly. See Jamie A. Grodsky, Genomics and Toxic Torts: Dismantling the Risk-Injury Divide, 59 Stan. L. Rev. 1671, 1709-11 (2007). Prospective plaintiffs’ claims may exist one moment and disappear the next as emerging science redefines which, and when, individuals are at risk of disease. 21 Companies would never be able to predict how many plaintiffs had potential claims, or for which plaintiffs that screening would be medically advisable. Expanding New York tort law in this unprecedented direction would also risk making New York a litigation haven for plaintiffs, imposing substantial burdens on the judiciary. West Virginia—one of the few outlier States that currently allows a medical monitoring cause of action, see infra at 32— has been so overwhelmed by medical monitoring suits that other States have cited its clogged courts as a cautionary tale. E.g., Henry, 473 Mich. at 83 n.12. New York could face even greater consequences if the Court recognized an expansive cause of action, because its larger population and industry base would yield far more prospective plaintiffs and businesses with a sufficient connection to this State to sue here. Untold numbers of plaintiffs seeking recovery for their exposure to allegedly defective pharmaceutical products, environmental toxins, or workplace chemicals would face enormous incentives to pursue claims in New York. 3. Existing Laws Obviate The Need For A New Cause Of Action A new cause of action also is not warranted if other remedies or policies provide some relief for the harm alleged. Cf. Madden, 84 N.Y.2d at 747. For instance, this Court rejected a new cause of action for third-party invasions of attorney-client privilege because many types of invasions might be otherwise 22 actionable, and because disciplinary codes and procedures already encourage attorneys and investigators to adequately protect privileged information. Id. In this case, recent federal legislation seriously calls into question whether a new medical monitoring cause of action is necessary to ensure that individuals have access to potentially life-saving screening. The U.S. Preventive Services Task Force already evaluates the efficacy of a host of proposed preventive screening methods and decides whether they should be recommended as the standard of care for particular at-risk groups. U.S. Preventive Services Task Force, About the USPSTF, http://www.uspreventiveservicestaskforce.org/about.htm. The Affordable Care Act in turn will soon require all Americans to obtain health insurance, 26 U.S.C. § 5000A, and further requires that all private insurers, Medicare, and Medicaid “shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for,” inter alia, “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the [U.S.] Preventive Services Task Force.” 42 U.S.C. § 300gg-13. As a result, the vast majority of individuals will be able to receive for free— without even making a co-payment—any screening that is federally recommended as the standard of care. Screening for many conditions—e.g., anemia, high blood pressure, cervical cancer, high cholesterol, colon cancer, diabetes, HIV/AIDS, and skin cancer—are already recommended for at-risk groups and must be provided to 23 them for free. USPSTF A and B Recommendations, U.S. Preventive Services Task Force, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm. Medical monitoring causes of action would seek screening for many of these same conditions. And because at-risk groups are often broadly defined, many medical monitoring plaintiffs will likely be eligible for screening under federal guidelines. Judicial intervention and the risk of open-ended liability is neither needed nor justified to provide medical surveillance to most medical monitoring plaintiffs. This case illustrates that overlap. The Task Force recently made a tentative recommendation that certain heavy smokers receive annual LDCT screening, and gave it a “B” rating. U.S. Preventive Services Task Force, Screening for Lung Cancer: Draft Recommendation Statement (July 2013), http://www. uspreventiveservicestaskforce.org/draftrec.htm. If that recommendation becomes final, all private insurers, Medicare, and Medicaid must provide this screening for free to individuals who fit the government’s criteria. Sabrina Tavernise, Task Force Urges Scans for Smokers at High Risk, N.Y. Times, July 30, 2013, at A11. There would thus be no need to create a new cause of action merely to ensure that these individuals could have access to screening. On the other hand, if the Task Force ultimately rejects LDCT screening as an effective preventive test, or if plaintiffs in any given case seek to expand the scope or type of screening beyond the Task Force’s recommendations, there is no 24 need to create a cause of action to ensure that individuals have access to screening that is not recommended by public health experts. The judiciary should not second-guess whether a requested screening method is actually effective or advisable for a particular group. The relative costs and benefits of any type of medical monitoring are the subject of good-faith scientific and medical debate and ultimately reflect quintessential policy judgments. For every plaintiff who receives an early, life-saving diagnosis, many others may suffer the anguish of false positives or unnecessary surgery, or expose themselves to other illnesses because the tests themselves generally involve low doses of radiation. Editorial, Mixed Blessings, N.Y. Times, Aug. 5, 2013, at A16; see also A253-54 (Goodman report); A396 (Nat’l Cancer Inst. News); Herbert L. Zarov et al., A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?, 12 DePaul J. Health Care L. 1, 33-34 (2009). Experts affiliated with the National Cancer Institute warn that for many types of screening, “the cure is worse than the disease” for patients. Mixed Blessings, supra. Weighing these costs and benefits entails deciding whether a particular form of medical monitoring should be the national standard of care. That decision is the province of national medical organizations like the Task Force or the Legislature, not the judiciary. 25 4. Legislative Deference Is Particularly Warranted Here Even if a medical monitoring cause of action were conceivably warranted, the Legislature, not the judiciary, has “infinitely greater resources and procedural means to discern the public will,” weigh evidence, engage with affected constituencies, and “investigate and anticipate the impact of imposition of . . . liability” involved in creating a novel and potentially far-reaching cause of action. Murphy, 58 N.Y.2d at 302. Policy concerns about the need for new remedies “are best and more appropriately explored and resolved” by the Legislature, which can best resolve competing interests among potential plaintiffs and determine the scope of any claims. Id.5 When this Court has been faced with the prospect of sweeping changes to the common law that risk imposing far- reaching liability upon a wide range of companies, the Court has accordingly deferred to the Legislature and its capacity to gauge the policy consequences. See Murphy, 58 N.Y.2d at 302. And when the necessity of a far-reaching cause of action appears mitigated by existing measures, this Court leaves it to the Legislature to gauge whether further action is truly necessary in light of the consequences. Id. 5 This Court deferred to the Legislature before undertaking even lesser alterations to the common law. For example, only after the Legislature “consciously created” expectations of recovery by “reviving hundreds” of time-barred suits brought by plaintiffs whose mothers ingested diethylstilbestrol during pregnancy did this Court relax proof-of-causation requirements in such Footnote continued on next page 26 All of the concerns raised by a medical monitoring cause of action, and the dubious necessity of embarking on such an extreme alteration to the common law, strongly favor legislative deference here. See supra at 13-23. So too do the uniquely difficult policy questions raised by a medical monitoring cause of action. Only the Legislature can properly assess and weigh the competing interests of symptomatic and asymptomatic individuals. Allowing medical monitoring recovery for the latter group now would potentially sacrifice recovery for those who develop serious illnesses in the future, because New York follows the “transactional analysis approach” to claim preclusion. “Once a claim is brought to a final conclusion, all other claims arising out of the same transactions or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981); see also 16 N.Y. Prac., N.Y. Law of Torts § 19:40. Sacrificing potential recovery for seriously ill plaintiffs is a policy trade-off that other courts have been loath to endorse. E.g., Wood v. Wyeth-Ayerst Labs., Div. of Am. Home Prods., 82 S.W.3d 849, 858-59 (Ky. 2002). Even if plaintiffs’ claims for subsequent manifest injuries were not legally precluded, the magnitude of medical monitoring claims could “absorb[] resources Footnote continued from previous page cases. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 507 (1989). And this Court described Hymowitz as “a singular case” raising an “unusual scenario.” Id. at 507-08. 27 better left available to those more seriously harmed.” Buckley, 521 U.S. at 442. The range of businesses subject to a medical monitoring cause of action would include small start-ups and family-run businesses as well as large conglomerates. For the former especially, “[s]pending large amounts of money to satisfy medical monitoring judgments will impair their ability to fully compensate victims who emerge years later with actual injuries that require immediate attention.” Wood, 82 S.W.3d at 857. This difficult debate should play out before a Legislature that can hear testimony and hold hearings about these issues and make an informed policy decision about how these competing interests should be balanced. B. The United States Supreme Court And States’ Highest Courts Have Resoundingly Rejected Medical Monitoring As A Cause Of Action 1. This Court Should Follow The Lead Of A Clear Majority Of Courts The United States Supreme Court and the vast majority of States’ highest courts have rejected plaintiffs’ proposed cause of action for asymptomatic plaintiffs, citing compelling reasons for declining to jettison longstanding principles of tort law. In Buckley, the Supreme Court held that under the Federal Employers Liability Act, a plaintiff with workplace exposure to asbestos but no present physical symptoms could not bring “a new, full-blown, tort law cause of action” for medical monitoring to detect any future signs of asbestos-related disease. 521 U.S. at 443-44. The Court “canvassed the state-law cases that have 28 considered whether the negligent causation of [mere exposure to a toxic substance] . . . by itself constitutes a sufficient basis for tort recovery,” and found that such a theory was “beyond the bounds of currently evolving common law.” Id. at 440 (citations and internal quotation marks omitted). The Court was “troubled . . . by the potential systemic effects of creating a new . . . cause of action,” noting “the effects upon interests of other potential plaintiffs who are not before the court and who depend on a tort system that can distinguish between reliable and serious claims on the one hand, and unreliable and relatively trivial claims on the other.” Id. at 443-44. The Court concluded that the “competing interests at stake” weighed against creating a new cause of action for medical monitoring—especially because “those interests sometimes can be reconciled in ways other than simply through the creation of a full blown, traditional, tort law cause of action.” Id. at 444. Since Buckley, eleven States’ highest courts have considered medical monitoring claims. A clear majority has rejected such claims as inimical to the core principle, settled under New York law, that plaintiffs must prove that they suffered some physical harm before they can recover in tort. • The Oregon Supreme Court faced a remarkably similar claim seeking medical monitoring for lung cancer based on PM USA’s alleged failure to manufacture a safer cigarette. The Court held that allowing a medical 29 monitoring claim based on mere exposure to allegedly toxic substances would flout its “well-established negligence requirements.” Lowe v. Philip Morris USA, Inc., 344 Or. 403, 415 (2008). • The Mississippi Supreme Court held that “[c]reating a medical monitoring action would be contrary to Mississippi common law, which does not allow recovery for negligence without showing an identifiable injury.” Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 3 (Miss. 2007). • The Michigan Supreme Court decisively rejected medical monitoring claims for asymptomatic plaintiffs because it considered the physical injury requirement as essential to “define[] more clearly who actually possesses a cause of action.” Henry v. Dow Chem. Co., 473 Mich. 63, 76-77 (2005). • The Kentucky Supreme Court stressed that discarding the rule that “a plaintiff must have sustained some physical injury before a cause of action can accrue . . . would force us to stretch the limits of logic and ignore a long line of legal precedent.” Wood, 82 S.W.3d at 853-54. • The Alabama Supreme Court described medical monitoring as “stand[ing] Alabama tort law on its head in an attempt to alleviate . . . concerns about what might occur in the future.” Hinton v. Monsanto, 813 So. 2d 827, 831 (Ala. 2001) (emphasis in original). 30 • The Nevada Supreme Court, faced with a claim for medical monitoring arising from exposure to cigarette smoke, refused to abandon the physical injury requirement because of the “lack of consensus in other jurisdictions and the complex fact pattern of tobacco litigation and causality.” Badillo v. Am. Brands, Inc., 117 Nev. 34, 44 (2001). These States accordingly reject medical monitoring as “an unprecedented and unfounded departure from the long-standing traditional elements of a tort action,” Paz, 949 So. 2d at 6, a “complete[] rewrite [of the] tort law system,” Hinton, 813 So. 2d at 830, and “uncharted territory” beyond “well-settled principles of tort law,” Wood, 82 S.W.3d at 856; see also Lowe, 344 Or. at 415; Henry, 473 Mich. at 76-78; Badillo, 117 Nev. at 41. Many of these States’ highest courts likewise stress that “[a]ltering common law rights, creating new causes of action, and providing new remedies for wrongs” are “generally a legislative, not a judicial, function.” Badillo, 117 Nev. at 42; see also Wood, 82 S.W.3d at 859. Louisiana’s handling of medical monitoring reinforces that lesson: the Louisiana Supreme Court briefly allowed medical monitoring claims absent physical injury, but was overruled by the legislature that took a contrary view of the competing 31 interests at stake. La. Civ. Code Ann. art. 2315(B) (overruling Bourgeois v. AP Green Indus., Inc., 716 So. 2d 355 (La. 1998)).6 6 Trends against recognizing medical monitoring absent physical injury continue to hold even when accounting for pre-Buckley decisions, intermediate state court decisions, and federal courts’ predictions about state law. Of the twenty-nine States with such caselaw, sixteen are skeptical of medical monitoring. See In re Prempro Prods. Liab. Litig., 230 F.R.D. 555, 569-70 (E.D. Ark. 2005); Goodall v. United Illuminating, No. X04CV 950115437S, 1998 WL 914274, at *10 (Conn. Super. Ct. Dec. 15, 1998); Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647, 651 (Del. 1984); Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290, 1302 (N.D. Ga. 2005); Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 638-39 (7th Cir. 2007) (construing Indiana law and suggesting that medical monitoring is not cognizable); Paulson v. 3M Co., No. C2-04-6309, 2009 WL 229667 (Minn. Dist. Ct. Jan. 16, 2009); Avila v. CNH America LLC, No. 4:04CV3384, 2007 WL 2688613, at *1 (D. Neb. Sept. 10, 2007); Curl v. Am. Multimedia, Inc., 654 S.E.2d 76, 81 (N.C. Ct. App. 2007); Mehl v. Canadian Pac. Ry., 227 F.R.D. 505, 517-18 (D.N.D. 2005); McCormick v. Halliburton Co., 895 F. Supp. 2d 1152, 1158-59 (W.D. Okla. 2012); Miranda v. DaCruz, No. PC 04-2210, 2009 WL 3515196 (R.I. Super. Ct. Oct. 26, 2009); Rosmer v. Pfizer, Inc., No. CIV.A. 9:99–2280–18RB, 2001 WL 34010613, at *5 (D.S.C. Mar. 30, 2001); Norwood v. Raytheon Co., 414 F. Supp. 2d 659, 667 (W.D. Tex. 2006); In re All Pending Chinese Drywall Cases, No. CL09–3105, 2010 WL 7378659, at *10 (Va. Cir. Ct. Mar. 29, 2010); Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 606-07 (W.D. Wash. 2001); Alsteen v. Wauleco, Inc., 802 N.W.2d 212, 223 (Wis. Ct. App. 2011). In contrast, only thirteen States might allow medical monitoring in any form, including as a remedy, absent physical injury. See Burns v. Jaquays Mining Corp., 752 P.2d 28, 33 (Ariz. Ct. App. 1988); Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 823-24 (Cal. 1993); Cook v. Rockwell Int’l Corp., 755 F. Supp. 1468, 1477 (D. Colo. 1991); Arias v. DynCorp, Nos. 01– 1908(RWR), 07–1042(RWR), 2013 WL 821168, at *3 n.2 (D.D.C. Feb. 19, 2013); Petito v. A.H. Robins Co., 750 So. 2d 103, 106-07 (Fla. Dist. Ct. App. 1999); Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp. 2d 833, 836 (N.D. Ill. 2008); Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1522-23 (D. Kan. 1995); Lamping v. Am. Home Prods., Inc., No. DV- 97-85786, 2000 WL 35751402 (Mont. 4th Dist. Ct. Feb. 2, 2000); Ayers v. Twp. of Jackson, 106 N.J. 557, 606-07 (1987); Mann v. CSX Transp., Inc., No. 1:07–cv–3512, 2009 WL 3766056, at *3 (N.D. Ohio Nov. 10, 2009); Redland Soccer Club, Inc. v. Dep’t of the Army, 696 A.2d 137, 145-46 (Pa. 1997); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 575 n.7 (6th Cir. 2006) (suggesting that “murky” Tennessee law might allow medical monitoring); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979 (Utah 1993). Of those thirteen States, only six might allow a free-standing cause of action. See Cook, 755 F. Supp. at 1477; Arias, 2013 WL 821168, at *3 n.2; Petito, 750 So. 2d at 106-07; Lamping, 2000 WL 35751402; Redland Soccer, 696 A.2d at 145-46; Hansen, 858 P.2d at 979. 32 2. Even Courts That Allow Medical Monitoring Would Not Do So Here Even among those state high courts that have endorsed medical monitoring, the consensus is against allowing medical monitoring as a cause of action. After Buckley, only four of the eleven States whose highest courts considered the issue— Maryland, Massachusetts, Missouri, and West Virginia—allowed medical monitoring in any form (either as a remedy or cause of action) for asymptomatic plaintiffs. Exxon Mobil Corp. v. Albright, --- A.3d ----, 2013 WL 4052435, at *32 (Md. Feb. 26, 2013), reconsideration granted on other grounds, 2013 WL 4052630 (June 25, 2013); Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 221(2009); Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 717-18 (Mo. 2007); Bower v. Westinghouse Elec. Corp., 206 W. Va. 133, 138-39 (1999). And only two of those courts—Massachusetts’s Supreme Judicial Court and the West Virginia Supreme Court of Appeals—suggested that medical monitoring is a cause of action. See Donovan, 455 Mass. at 221, 224; Bower, 206 W. Va. at 138-39. An overwhelming consensus thus disfavors a new cause of action. See Albright, 2013 WL 4052435, at *31-32; accord Badillo, 117 Nev. at 41; Potter, 863 P.2d at 823. Moreover, other States’ decisions rest on grounds that do not support the cause of action proposed here. Many of the States that have allowed recovery for medical monitoring consider plaintiffs’ economic interest in avoiding medical monitoring costs to be an “injury” that may be pursued in a tort action. See, e.g., 33 Meyer, 220 S.W.3d at 717-18; Redland Soccer, 548 Pa. at 192-93; Hansen, 858 P.2d at 978. New York, however, has rejected this theory, holding that any such economic loss must be pursued in a contract action. See supra at 14. Furthermore, those high courts that permit medical monitoring claims overwhelmingly limit such claims to the environmental tort context, and refuse to extend such claims to personal products like cigarettes. For example, New Jersey, which allowed medical monitoring before Buckley was decided, allows the claim only for environmental torts. Sinclair v. Merck & Co., 195 N.J. 51, 54, 61-64 (2008). That context involves involuntary and unlawful exposure to toxic substances that are encountered infrequently and are not deliberately inhaled or ingested. But claims arising from consumer products like cigarettes often involve some level of voluntary exposure and known risks of a lawful product. For those reasons, New Jersey requires plaintiffs in products-related cases to show present and manifest physical injury. See id. at 64; accord Ratliff v. Mentor Corp., 569 F. Supp. 2d 926, 928-29 (W.D. Mo. 2008) (suggesting that Missouri would not allow medical monitoring claims in products liability cases). Moreover, estimating whether a hypothetical product would marginally reduce the advisability of monitoring for various plaintiffs inserts courts into difficult guesswork about whether plaintiffs might have used that imagined alternative product differently, or 34 even refused to switch products despite the known hazards of the existing design. Cf. Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545, 550-51 (2008). The policy justifications cited by other States and stressed by plaintiffs, Br. 49-52, also are uniquely tied to involuntary environmental exposure. Cf. Sinclair, 195 N.J. at 61-62. Decades ago, courts perceived that environmental tort plaintiffs were particularly lacking in access to medical testing. Potter, 863 P.2d at 824; Hansen, 858 P.2d at 976-77; Ayers, 106 N.J. at 603-04. Courts also cited the “deterrence value in recognizing medical surveillance claims” in the environmental context, believing that the costs would “deter[] irresponsible discharge of toxic chemicals.” Potter, 863 P.2d at 824 (internal citation and quotation marks omitted); accord Bower, 206 W. Va. at 140; Hansen, 858 P.2d at 976; Redland Soccer, 548 Pa. at 194. Courts also invoked fairness and the need for a remedy when “tort law has no capacity to deter polluters, because the costs of proper disposal are often viewed by polluters as exceeding the risk of tort liability.” Ayers, 106 N.J. at 604; see also Hansen, 858 P.2d at 976 n.8. In the view of these courts, judicial intervention was proper lest polluters continue leaving toxins in neighborhoods or workplaces where unwitting plaintiffs would belatedly discover their peril. Those policy rationales have lost much of their force and do not apply here. Now that public and private insurers must provide critical preventive screening 35 free of charge, the notion that these plaintiffs or many others lack access to basic screening for many types of cancer or heart disease no longer holds true. See supra at 22-23. Moreover, manufacturers lawfully sell various personal products containing trace amounts of substances that carry some risk of future harm; some level of exposure is not only inevitable, but also unlikely to be wrongful. As the district court found in this case, the risks of contracting lung cancer from smoking are widely known, A367, and even the named plaintiffs concede that some exposure to carcinogens in cigarettes is unavoidable and that they were disinclined to smoke purportedly “safer” cigarettes in any event. See A306-09, 319, 339, 345. 3. Donovan v. Philip Morris USA, Inc. Is Erroneous Plaintiffs rely heavily on the Massachusetts Supreme Judicial Court’s decision in Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009), which held that plaintiffs are entitled to indefinite medical monitoring if they show that a negligent defendant caused their exposure to any hazardous substance producing “subcellular changes” that “substantially increased the risk” of any type of “serious disease, illness, or injury” that can be “effective[ly]” detected and treated early through medical tests. 455 Mass. at 226. Donovan is one of only two post- 36 Buckley decisions by a state supreme court to allow a medical monitoring cause of action, and Bower (the other post-Buckley case), involved an environmental tort.7 This Court should not follow in Donovan’s flawed path. Donovan gave few justifications for its unprecedentedly sweeping holding. Donovan did not cite the many decisions rejecting medical monitoring, let alone grapple with their reasoning. Donovan, like Bower, did not consider the propriety of endorsing such a significant change to the common law—a shortcoming West Virginia’s Justice Maynard derided for flouting the rule that “the creation, augmentation, repeal or abolishment of complete causes of action is a legislative power.” Bower, 206 W. Va. 133, 144 (1999) (Maynard, J., dissenting). Instead, Donovan asserted a bare policy preference that “exposure to toxic substances and radiation [that] may cause substantial injury . . . should be compensable.” 455 Mass at 225. Donovan also downplayed the extremeness of allowing recovery for medical monitoring for the increased risk of serious disease, 7 Donovan stands alone even among the other two purportedly identical suits brought by plaintiffs’ counsel against PM USA. Gargano v. Philip Morris USA, Inc., No. 1:10-cv-24042 (S.D. Fla.), dismissed plaintiffs’ complaint for failing to adequately plead that plaintiffs would not have experienced a heightened risk of lung cancer sufficient to create a need for monitoring but for Marlboros’ allegedly defective design. See 2011 WL 2445869, at *4 (S.D. Fla. June 20, 2011),. Xavier v. Philip Morris USA, Inc., No. 3:10-cv-02067 (N.D. Cal.), dismissed plaintiffs’ “stand-alone” medical monitoring claim, reasoning that even though California took the “controversial step” of allowing medical monitoring as a remedy, it was implausible that California would go further and create “a new plaintiff-friendly super tort.” 2010 WL 3956860, at *3-4 (N.D. Cal. Oct. 8, 2010). Plaintiffs voluntarily dismissed their claims for medical monitoring as a remedy after the court rejected certification. No. 3:10-cv-02067 (Doc. 112). 37 reasoning that it was just like allowing recovery for the costs of medical testing after an accident that produces physical trauma but no visible injuries. 455 Mass. at 224; accord Br. 34. But Buckley explained that physical trauma cases represent “special recovery” situations that are “beside the point” in typical medical monitoring cases that do not involve the “presence of a traumatic physical impact.” 521 U.S. at 440. In physical trauma cases, plaintiffs have suffered a cognizable injury: they have been physically struck, and the only question is how badly they were hurt. Medical testing confirms the extent of the injury that the plaintiffs actually suffered at the time of the accident. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 819-20 (D.C. Cir. 1984). Courts that allow recovery for medical tests after physical trauma thus have denied claims by smokers who sought medical monitoring but suffered no “present injury.” See Witherspoon v. Philip Morris Inc., 964 F. Supp. 455, 467 (D.D.C. 1997). Given Donovan’s flawed reasoning and lack of support from other jurisdictions, this Court should also reject plaintiffs’ invitation to extend Donovan even further. Br. 38 n.33. Plaintiffs ask this Court to hold that any kind of “theory of fault” is a predicate for a medical monitoring action, in order to maintain their implied breach of warranty and strict liability claims as bases for recovery. Id. Even Donovan holds that defendants’ negligence must cause plaintiffs’ exposure. 455 Mass. at 227; accord Hansen, 858 P.2d at 979; Cull v. Cabot Corp., 61 Pa. D. 38 & C. 4th 343 (Pa. Ct. Com. Pl. 2001). That limitation is sensible: negligence is based on the notion that a defendant has a sufficiently strong relationship to the plaintiffs to owe them a duty of care, whereas strict liability and other products- based torts may involve more tenuous connections between producers and consumers.8 Plaintiffs also ask this Court to hold that they need not suffer any “injury” to recover for medical monitoring. See Br. 62. But in Donovan, plaintiffs alleged that “they have sustained a present injury in the form of objectively observable and identifiable damage to the tissues and structures of their lungs resulting in a substantially increased risk of cancer.” 455 Mass. at 221. Plaintiffs steer clear of that position in this case—apparently to avoid this Court’s precedents on accrual, under which any cause of action would have accrued years ago when plaintiffs allegedly suffered an increased risk of cancer. See infra at 51-53. In sum, no decision of any other State’s highest court supports the proposed cause of action. 8 The Supreme Judicial Court in Donovan assumed that all of plaintiffs’ design-defect claims were predicated on the theory that their “injury was caused by [PM USA’s] negligence in the design and manufacture of Marlboro cigarettes.” 455 Mass. at 221 (emphasis added). In subsequent proceedings, however, the federal district court in Donovan certified only plaintiffs’ implied breach of warranty and deceptive trade practices claims (which were predicated on strict liability) and denied certification of the negligent design claim. Donovan v. Philip Morris USA Inc., 268 F.R.D. 1, 29-30 (D. Mass. 2010). The district court did not consider whether that approach was permissible even though the Supreme Judicial Court appeared to contemplate only negligence as the basis for a medical monitoring cause of action. 39 II. Any Medical Monitoring Cause Of Action Should Be Carefully Tailored To Avoid Uncabined Liability A. Any Cause Of Action Should Be In Law, Not In Equity If this Court, contrary to our submission, were to create a cause of action for medical monitoring absent manifest physical injury, the action should not be in equity. Invoking equity, plaintiffs want the judicial system to oversee and superintend patient care to provide maximum centralization and oversight. Br. 23- 24, 51-52. Plaintiffs envision a cause of action that would require indefinite payments by businesses into a court-administered fund, and would require the courts to spend decades overseeing everything from appointing trustees, to extensive outreach and informed consent procedures, to enrolling plaintiffs in medical counseling. See Br. 3-4, 23-24; A448-53, A465-66. Recognizing such a cause of action would be particularly inconsistent with New York law and would commandeer already overburdened courts into performing services better and more appropriately performed by public health agencies. “[E]quity will not entertain jurisdiction where there is an adequate remedy at law,” Boyle v. Kelley, 42 N.Y.2d 88, 91 (1977), i.e., if money damages could fairly substitute for the equitable remedy sought. Cf. Lichtyger v. Franchard Corp., 18 N.Y.2d 528, 537 (1966). Here, money damages would fully enable an asymptomatic plaintiff to obtain medical monitoring. Those plaintiffs may use money payments to cover the ongoing costs of going to the doctor’s office to have 40 the screening done. The few New York intermediate courts that allow medical monitoring have considered it as “consequential damages,” Askey, 477 N.Y.S.2d at 247, “future . . . costs,” Abusio v. Consol. Edison Co. of New York, Inc., 656 N.Y.S.2d 371, 372 (2d Dep’t 1997), or “costs” and “damages,” Baity v. Gen. Elec. Co., 927 N.Y.S.2d 492, 494 (4th Dep’t 2011); accord A744. Plaintiffs themselves quote these cases for the proposition that plaintiffs may “pursue legal actions seeking medical monitoring,” Br. 46 (emphasis added), and “‘can recover all damages’” and “‘reasonably anticipated consequential damages’” of exposure to a toxic substance, id. at 45. Patients routinely receive mammograms, Pap smears, prostate exams, and other tests by paying for them at doctors’ offices. So too can patients schedule and obtain regular LDCT screenings, and radiologists and other professionals can interpret and explain the results like any other test. Plaintiffs previously conceded that where there are “readily available medical monitoring procedures” for testing, “the medical monitoring remedy sought can be easily and appropriately satisfied by . . . money damages.” Pls.’ Mem. of Law in Opp’n to Def. Philip Morris USA Inc.’s Mot. to Dismiss Pls.’ Fourth Cause of Action for Medical Monitoring at 9, ECF No. 105-3. And as discussed, LDCT screening will be “readily available” if it 41 becomes the standard of care and the U.S. Preventive Services Task Force finalizes its draft recommendation favoring screening. See supra at 22-23.9 In short, the judicial system is not equipped to run a medical and public health program envisioned by plaintiffs. The burdens of a single case would be considerable, and with every similar lawsuit could come massive additional administrative burdens that would create delays and prejudice meritorious claims. B. The Elements of Any Such Cause of Action Should Be Narrowly Tailored If this Court were to create a cause of action for medical monitoring, it should, at minimum, not extend that action to suits involving consumer products. See supra at 32-34. In all events, the elements of a medical monitoring cause of action should be narrowly tailored to mitigate open-ended and unpredictable liability. The elements of the cause of action should require plaintiffs to prove that (1) the defendant’s negligence; (2) was the but-for cause of plaintiffs’ exposure to a hazardous substance and of plaintiffs’ purported need for medical monitoring; (3) plaintiffs’ preferred screening method represents the standard of care and is 9 Plaintiffs’ assertion that PM USA’s experts “agreed that only a well designed and executed program of LDCT lung cancer screening would be proper,” Br. 24, mischaracterizes the record. Neither expert stated that plaintiffs’ preferred program would be superior to allowing plaintiffs to purchase LDCT screening themselves. Dr. Goodman merely described what screening programs generally entail in response to questions about elements of “a properly done screening program,” A209-15, and Dr. Pass said nothing about the propriety of an LDCT screening program. See A216-18. 42 medically indicated for a particular plaintiff based on his or her circumstances; and (4) plaintiffs will use the monitoring in question. 1. Negligence Medical monitoring causes of action should be triggered only if a defendant acts negligently. As discussed, many of the courts that have allowed medical monitoring require a defendant to breach a preexisting duty owed to the plaintiffs before defendants can become responsible for decades of expenses for medical tests. See supra at 37 (citing Donovan, 455 Mass. at 227; Hansen, 858 P.2d at 979; Cull, 61 Pa. D. & C. 4th at 343). Because strict liability and other products-related torts contain no such limitation, manufacturers that lawfully sell consumer products cannot proactively control the scope of their prospective liability. 2. But-For Causation As the district court recognized, requiring but-for causation reflects New York’s longstanding requirement that liability should not be imposed when the plaintiff would have suffered the same injury in the absence of the alleged tortious conduct. See A415-19. A but-for causation requirement ensures that had a defendant not acted wrongfully, a plaintiff would not have been exposed to a hazardous substance, nor would medical monitoring be warranted. In ordinary tort cases, the defendant’s wrongful conduct must be the but-for cause of plaintiffs’ injury. See Restatement (Third) of Torts, §§ 26, 27; W. Page 43 Keeton et al., Prosser and Keeton on Torts § 41 (5th ed. 1984). New York courts routinely dismiss claims if plaintiffs cannot show that they would have avoided injury absent the defendant’s wrongful conduct. E.g., Marden v. Maurice Villency, Inc., 815 N.Y.S.2d 501, 502 (1st Dep’t 2006) (no causation when injury from collapsed chair might have been caused by natural drying of glue, not a flawed design); Gonzalez v. Delta Int’l Mach. Corp., 763 N.Y.S.2d 844, 866 46 (2d Dep’t 2003) (no causation when plaintiff did not show that better saw design would have prevented injury given the equal likelihood plaintiff’s employer failed to properly install a guard); Ramirez v. Sears, Roebuck & Co., 729 N.Y.S.2d 503, 505-06 (2d Dep’t 2001) (no causation when plaintiff did not prove injury “would have been prevented by [a] design change”). But-for causation would be a particularly important requirement in a medical monitoring claim. Irrespective of a company’s allegedly wrongful actions, many plaintiffs may have been exposed to a toxic substance—for instance because of workplace exposure or other environmental factors. Likewise, medical monitoring for particular diseases may be medically advisable regardless of a defendant’s wrongful conduct—for instance because a plaintiff is genetically predisposed to the disease, or would have engaged in conduct that increased the risk of disease irrespective of whether the defendant acted wrongly. Here, as the district court found, PM USA’s purportedly wrongful conduct is irrelevant to plaintiffs’ alleged 44 need for medical monitoring. A416-17. Under plaintiffs’ own theory, even if plaintiffs had used the alleged “safer” (but still hazardous) alternative design, they would have ingested sufficient harmful substances such that monitoring would still be recommended. A417. The district court thus dismissed plaintiffs’ cause of action because they did not “plead and prove that [PM USA’s] failure to produce and market a non-defective cigarette is the reason that the plaintiffs must now secure medical monitoring” and did not allege they “would not have been exposed to harmful levels of tar” regardless of PM USA’s conduct. A416-17. Similarly, in an identical lawsuit in Florida, the district court dismissed the complaint because plaintiffs failed to allege that Marlboros’ allegedly defective design was the but-for reason why monitoring was medically advisable. In other words, plaintiffs failed to plead that medical monitoring would not have been medically indicated for them otherwise. Gargano, 2011 WL 2445869, at *2-3. Maryland requires proof that defendants “direct[ly] and proximate[ly]” increased plaintiffs’ risk of disease so as to warrant medical monitoring. Albright, 2013 WL 4052435, at *29. Other courts require plaintiffs to prove that the defendant’s tortious conduct would lead “a reasonable physician [to] . . . prescribe for [plaintiff] a monitoring regime different than the one that would have been prescribed in the absence of that particular exposure” caused by a defendant’s wrongful conduct. Hansen, 858 P.2d at 980; accord In re Paoli R.R. Yard PCB 45 Litig. (Paoli II), 35 F.3d 717, 788 (3d Cir. 1994); see also Redland Soccer, 696 A.2d at 146. This Court should similarly require but-for causation so that businesses do not pay for screening that would be medically indicated for a plaintiff regardless of any wrongful conduct. See Potter, 863 P.2d at 823, 824-25. Evidently aware that monitoring still would be medically advisable under plaintiffs’ theory even for users of their proposed alternative design, plaintiffs ask this Court to strip but-for causation from New York law. According to plaintiffs, it should not matter whether monitoring would be medically indicated in the absence of the alleged misconduct, so long as a defendant’s conduct is a “substantial factor.” Br. 38 n.33. That argument misapprehends New York tort law. As the district court explained, the “substantial factor” test “refer[s] to the subset of but for causes that will be said to be the proximate or legal cause of an actionable harm.” A418. In other words, in New York, the distinction between but-for causation and the substantial-factor test is semantic; a substantial-factor test “includes the but-for element.” 14 N.Y. Prac., N.Y. Law of Torts § 8:6. Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d 102 (1983), which plaintiffs cite, Br. 33 n.38, only confirms the necessity of showing but-for causation under the substantial-factor test. This Court applied the substantial- factor test by explaining that the plaintiff would not have sustained his injuries but for a defect in a blade. Id. at 110-11; accord Yondola v. Trabulsy, 22 A.D.3d 483, 46 483-84 (2d Dep’t 2005) (jury should have found defendant’s negligence was a “substantial factor in causing the accident” when accident “would not have occurred but for the fact that the defendant” negligently drove into intersection); Trabal v. Queens Surgi-Ctr., 8 A.D.3d 555, 557 (2d Dep’t 2004) (jury should have found surgery was “a substantial factor in causing the plaintiff’s injury” when “‘but for’ the initial surgery, the plaintiff would not have . . . sustained the infection and other injuries”). Thus, “no case has been found where the defendant’s act could be called a substantial factor when the event would have occurred without it.” Keeton, supra, § 41; accord Restatement (Second) of Torts, §§ 431, 432. The only substantive distinction between “but-for” and “substantial-factor” causation is in a context that is irrelevant here, i.e., when an injury is independently caused by two tortfeasors. For instance, if two fires caused by two different tortfeasors combine to burn down a plaintiff’s home, yet either fire would have caused the same outcome, the “substantial factor” test holds all responsible defendants liable. That is so even though neither tortfeasor is the but-for cause of the fire because the house still would have been destroyed but for either single defendant’s misconduct. Keeton, supra, § 41; accord Sheehan v. City of New York, 40 N.Y.2d 496, 503 (1976). This doctrine is irrelevant here: PM USA is the 47 only alleged tortfeasor, and it should not be liable if medical monitoring would be recommended for plaintiffs irrespective of the defendant’s wrongful conduct.10 3. A Medical Consensus Recommends Medical Monitoring For A Plaintiff The third element requires proof that a national medical consensus supports medical monitoring for individuals who share plaintiffs’ characteristics, and that monitoring is also medically indicated based on a particular plaintiff’s individual circumstances. Other jurisdictions require that major medical organizations must endorse the form of medical monitoring plaintiffs seek, and for individuals with plaintiffs’ characteristics. See In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 73 (S.D.N.Y. 2002); In re Tobacco Litig., 600 S.E.2d 188, 193 (W.Va. 2004); In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133, 147 (E.D. La. 2002). The judiciary is not well positioned to gauge whether a particular form of medical monitoring is efficacious or accepted as the standard of care, let alone for which individuals with which risk factors such monitoring is medically advisable. Requiring that a national consensus of medical organizations accept the form of monitoring and recommended it for a particular group of at-risk individuals would ensure that 10 Aside from Voss, all of the cases that plaintiffs cite, Br. 33 n.38, are inapposite. Derdiarian v. Felix Contracting Co., 51 N.Y.2d 308 (1980), and Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980), concern whether an intervening act was a superseding cause that relieved defendants of liability, or was instead foreseeable. And Dunham v. Canisteo, 303 N.Y. 498 (1952), pre- dates clear statements by this Court and leading tort law treatises indicating that “but for” causation is an essential element of “substantial factor” causation unless there are two tortfeasors who independently cause the same harm. 48 plaintiffs’ proposed remedy reflects the views of the entire medical community, not just a handful of plaintiffs’ experts. This requirement would avoid imposing liability based on hotly contested issues of medical science and would ensure that any ordered screening is consistent with the consensus as to the appropriate standard of care. Given the millions of potential plaintiffs in medical monitoring suits, this standard is also necessary so that defendants are not forced to pay for harms that may never materialize. Ensuring that screening reflects the standard of care also increases the likelihood that plaintiffs will opt to use screening. Thus, plaintiffs here must show that major medical organizations accept LDCT screening as effective, and that LDCT screening is indicated for those aged 50 or older with 20-pack-year histories (the threshold proposed by plaintiffs). A plaintiff must also show that this accepted form of medical monitoring is medically justified based on his or her individual circumstances. This Court should join the others that have held that mere proof that a form of monitoring is “theoretically beneficial” for an at-risk group is insufficient; “[i]t must also be shown that administration of the test to a specific plaintiff must be medically advisable for that plaintiff.” Hansen, 858 P.2d at 980 (emphasis added). Even if screening is generally recommended, it may be medically unsuitable for a given plaintiff “because the benefits of the monitoring would be outweighed by the costs, which may include, among other things, the burdensome frequency of the 49 monitoring procedure, its excessive price, or its risk of harm to the patient.” Id. Many plaintiffs may have individual attributes that would contra-indicate screening—for instance, morbid obesity or an existing condition that would be aggravated by the substantial side effects of preventive screening. E.g., A149-50 (Morabia report); A178-79 (Miller report). Thus, plaintiffs here must show that LDCT screening is also advisable for individual plaintiffs who may be contra- indicated for screening. 4. Defendants Should Be Liable Only For Medical Monitoring That A Plaintiff Actually Receives Finally, plaintiffs should be required to demonstrate that they would use the medical monitoring they seek, so that defendants’ liability is limited to the screening that plaintiffs actually receive. Studies show that prevailing plaintiffs may opt against receiving medical monitoring even though they are entitled to it and even receive money to pay for it. Unlike actually injured plaintiffs, who overwhelmingly opt to use any recovery to treat their present condition, plaintiffs who have no symptoms tend to spend any money they recover from medical monitoring claims on something other than monitoring, or simply decline to receive screening. See Victor E. Schwartz et al., Medical Monitoring: The Right Way and the Wrong Way, 70 Mo. L. Rev. 349, 370-73 (2005); Arvin Maskin et al., Medical Monitoring: A Viable Remedy for Deserving Plaintiffs or Tort Law’s Most Expensive Consolation Prize?, 27 Wm. Mitchell L. Rev. 521, 540-42 (2000). 50 Although this requirement is appropriate regardless of whether medical monitoring is sought in an individual or class action, these concerns are magnified in class actions. Defendants who pay plaintiffs in advance for the expected costs of medical monitoring without assurance that the money would actually be used for screening could pay amounts that are orders of magnitude greater than the costs of the monitoring plaintiffs actually opt to receive—as past class actions illustrate. Schwartz, supra, at 370-73. Plaintiffs’ proposed remedy likewise would force defendants to pay for the costs of a “program” built on the dubious assumption that hundreds of thousands of plaintiffs will enroll—a proposal that dramatically expands defendants’ costs as well as the attorney’s fees for plaintiffs’ counsel. Requiring plaintiffs to establish that they will each use the medical monitoring they seek avoids those pitfalls and relieves the judiciary and companies of the burdens of processing claims for patients who in fact do not want screening. Plaintiffs could establish this either through individual declarations under oath that the plaintiff would use the screening or by administering medical monitoring on a pay-as-you-go basis, whereby the defendant would pay for the costs of medical monitoring after the plaintiff visits the doctor. This Court should not require businesses to fund screening that will never be fully utilized. 51 III. Any Medical Monitoring Claim Recognized By This Court Should Be Subject To A Three-Year Limitations Period That Accrues When A Plaintiff Actually Suffers An Increased Risk Of Disease A. A Three-Year Limitations Period Should Apply PM USA’s primary position is that New York tort law should not abandon the traditional rule that a cognizable injury in tort requires physical manifestations of illness. If this Court nonetheless holds that plaintiffs suffer an “injury” when their exposure to a hazardous substance warrants medical monitoring, this Court would be recognizing a new type of personal injury, albeit one without physical symptoms. Moreover, if this Court were to invent a new medical monitoring cause of action, the action should be legal, not equitable. See supra at 38-40. Thus, if this Court creates a medical monitoring cause of action, the traditional three-year statute of limitations period applicable to “an action to recover damages for a personal injury” should govern. C.P.L.R. § 214(5); id. § 214-c(2).11 B. Any Medical Monitoring Claim Recognized By This Court Should Accrue At The Time Of An Alleged Increased Risk Of Disease Regardless of what limitations period applies, medical monitoring claims should accrue at the time plaintiffs allegedly become subject to an increased risk of disease, not each time a requested form of testing becomes medically acceptable. 11 C.P.L.R. section 214(5) applies generally to “an action to recover damages for a personal injury,” while section 214-c(2) also applies a three-year limitations period to actions to recover damages for personal injuries resulting from the latent effects of exposures to toxic substances. 52 1. Claims Accrue On The Date Plaintiffs Allegedly Suffered An “Injury” Injury is the touchstone of accrual: the limitations period begins to run “from the time the cause of action accrue[s],” C.P.L.R. § 203(a), and “[a]s a rule, the date of injury is the benchmark for determining the accrual of a cause of action.” Blanco, 90 N.Y.2d at 767; see also Snyder, 81 N.Y.2d at 432. Only upon injury can “all elements of the tort . . . be truthfully alleged in a complaint.” Snyder, 81 N.Y.2d at 432-33; see also Vigilant Ins. Co. of Am. v. Hous. Auth. of City of El Paso, Tex., 87 N.Y.2d 36, 43 (1995). The date-of-injury accrual standard reflects this Court’s longstanding insistence upon “‘bright line, readily verifiable’” accrual rules. MRI Broadway Rental, Inc. v. U.S. Min. Prods. Co., 92 N.Y.2d 421, 423 (1998) (quotation omitted); see also LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 708 (1995); Blanco, 90 N.Y.2d at 771-72. “The policies underlying a Statute of Limitations—fairness to defendants and society’s interest in adjudication of viable claims not subject to the vagaries of time and memory— demand a precise accrual date that can be uniformly applied, not one subject to debate or negotiation.” Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 542 (1994). These concerns underscore why other courts have tied the accrual of medical monitoring claims to the date of alleged injury. A federal district court applying Pennsylvania law, for instance, held that plaintiff’s medical monitoring claim 53 “accrue[s] when the plaintiff was placed at a significantly increased risk of contracting a serious latent disease.” Barnes v. Am. Tobacco Co. Inc., 984 F. Supp. 842, 859 (E.D. Pa. 1997) (quotation omitted), aff’d on appeal, 161 F.3d 127, 149 (3d Cir. 1998). A date-of-injury accrual rule reduces the disruptiveness of medical monitoring to traditional tort law by affording parties some predictability as to when claims accrue. Here, if this Court accepts plaintiffs’ heightened risk of disease and purported need for monitoring as the predicate “injury” for a medical monitoring suit, that injury occurred, and a cause of action accrued, when plaintiffs allegedly faced an increased risk of smoking-related lung cancer. Both the district court and Second Circuit concluded that based on plaintiffs’ allegations, plaintiffs were “injured” when they reached 20 pack-years of smoking. A359, A361, A700, A710-11; see also A383 (Compl. ¶¶ 69-71). Based on plaintiffs’ concessions in federal court, the federal courts further determined that all three named plaintiffs reached 20 pack-years of smoking Marlboro cigarettes by the mid-1990s—and that plaintiffs’ claims thus accrued roughly a decade before plaintiffs filed their complaint in 2006. A359-62; A711-15; see also A297-300, A317, A337-38. Those determinations are binding here. See Engel v. CBS, Inc., 93 N.Y.2d 195, 207 (1999); In re Southeast Banking Corp., 93 N.Y.2d 178, 183 (1999). 54 The only other plausible accrual rule is the “discovery rule” in C.P.L.R. section 214-c(2), which applies exclusively to personal injury actions involving exposure to toxic substances. The West Virginia Supreme Court of Appeals has followed the discovery rule in the medical monitoring context, and tied accrual of a medical monitoring cause of action to the plaintiff’s discovery of his or her “significantly increased risk of contracting a particular disease due to significant exposure to a proven hazardous substance.” State ex rel. Chemtall, Inc. v. Madden, 607 S.E.2d 772, 785 (W. Va. 2004). Even under the discovery rule, however, accrual could be delayed only until the date when plaintiffs knew or should have known of their “injuries.” Here, as the Second Circuit held, that date was when plaintiffs reached the 20-pack-year threshold and unquestionably knew that their smoking habit had increased their risk of lung cancer, and that date occurred at least six years before plaintiffs filed their complaint. A711-15; see also A359-62, A297-300, A317, A337-38. 2. Plaintiffs’ Accrual Rule Contradicts This Court’s Precedents And Is Unworkable Plaintiffs argue that any limitations period should begin to run upon the factual availability of a plaintiff’s requested form of medical testing, i.e., when the screening requested achieves “accept[ance]” as “efficacious” within the “medical community.” Br. 43. That standard flies in the face of established limitations principles and is utterly unworkable. 55 As an initial matter, whether in fact a plaintiff can get the relief he seeks has no bearing on when a claim accrues. A cause of action “entitles one person to obtain a remedy in court from another person.” Black’s Law Dictionary (9th ed. 2009). A cause of action does not include the remedy itself. See Williams v. Walsh, 558 F.2d 667, 671 (2d Cir. 1977). In other words, what matters for purposes of accrual is the tort victim’s legal right to “obtain relief in court,” Vigilant Ins., 87 N.Y.2d at 43, not the factual availability of the remedy. See also LaBello, 85 N.Y.2d at 704. An accident victim injured by a careless but judgment- proof driver has a negligence claim for damages when the accident happens, not if and when the defendant has enough money to pay the costs of the victim’s injuries. Incorporating the availability of relief as an element of a claim that starts a limitations clock flouts all established principles that undergird a statute of limitations—protection against stale claims, repose, and ease of administration. This Court’s precedents uniformly reject “accrual dates which cannot be ascertained with any degree of certainty, in favor of a bright line approach.” MRI Broadway, 92 N.Y.2d at 428. For instance, this Court declined to tie accrual of a property-damage claim to the date that the amount of airborne asbestos in a plaintiff’s building exceeded OSHA standards, reasoning that this date was “unknown and unknowable” and depended upon crossing a regulatory threshold that could change “simply upon the promulgation of newer, more stringent 56 government standards.” Id. This Court similarly refused to tie accrual of an accounting malpractice claim to the date when the IRS assessed a tax deficiency, because the timing of potential IRS action, if it ever occurred, was unpredictable, fact-intensive, and case-specific. Ackerman, 84 N.Y.2d at 541-42. This Court also rejected a proposed accrual standard that would have delayed the running of the limitations period until “the date [the plaintiffs] actually became aware of the nature of their injuries.” Blanco, 90 N.Y.2d at 774. This “date of diagnosis test” would improperly “give a plaintiff ‘the power to put off the running of the Statute of Limitations indefinitely,’” and “only further ensnare trial courts in a fact-based application of the rule.” Id. (quoting Snyder, 81 N.Y.2d at 435). Plaintiffs’ standard cannot be reconciled with those decisions. An accrual standard that turns on when a test has gained “accept[ance]” as “efficacious” within the “medical community,” Br. 43, would subject companies in perpetuity to stale claims based on conduct decades in the past. “[W]hen a diagnostic tool first becomes available for a condition, defendants again become vulnerable to suits for long-ago exposures.” Recent Cases, Supreme Judicial Court of Massachusetts Recognizes Cause of Action for Medical Monitoring of Tobacco Users, 123 Harv. L. Rev. 1771, 1777-78 (2010). Medical consensus as to the appropriate regimen for monitoring particular conditions is often elusive. See Buckley, 521 U.S. at 441. 57 Because newer screening methods are continuously developing, plaintiffs’ standard would ensure litigation “surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Britt v. Legal Aid Soc’y, 95 N.Y.2d 443, 448 (2000) (quotation omitted); see also Snyder, 81 N.Y.2d at 435. The Second Circuit queried “how New York would regard claim accrual in the event of further technological advances that may . . . improve on the effectiveness of existing tests.” A744-45. Plaintiffs do not answer that question, presumably because the answer would highlight that plaintiffs’ accrual rule would subject companies to suit in perpetuity based on the same alleged misconduct. This case illustrates the point. Since at least 1996, various litigants—including smokers—have sought medical monitoring for lung cancer based on pre-LDCT methods. E.g., Lowe v. Philip Morris USA, Inc., 142 P.3d 1079, 1081 (Or. Ct. App. 2006); Burns, 752 P.2d at 33; Barnes, 984 F. Supp. at 851; In re Tobacco Litig., 600 S.E.2d at 193. Plaintiffs here have denounced the efficacy of these prior forms of medical surveillance, and have suggested that “[a]ny lung cancer medical surveillance lawsuit commenced prior to 2006 could not have proceeded in good faith.” Br. 20. But plaintiffs offer no assurance that their suit will not appear equally in bad faith if and when future medical advances make LDCT tests look archaic. 58 In addition to constantly exposing companies to stale claims, any test that turns on when screening achieves “accept[ance]” as “efficacious” within the “medical community,” Br. 43, defies clarity, predictability, and ease of application. Here, as plaintiffs concede, “[t]he efficacy of Plaintiffs’ proposed remedy was hotly contested below.” 2d Cir. Br. 13; accord Br. 52-53. The district court recognized the “serious medical and scientific uncertainty in this area,” A413, and even plaintiffs acknowledge that “medicine in this area is rapidly developing, and can be expected to do so in the future.” Br. 24. This uncertainty includes when LDCT screening became allegedly “medically accepted.” Plaintiffs’ January 2006 complaint alleged that LDCT screening had already been “established,” A24, and early motions relied on studies from the early 2000s. A83 & n.14. Plaintiffs now assert that LDCT screening became medically accepted only in October 2006, when a “major peer-reviewed study” was published—nine months after plaintiffs filed their complaint. Br. 20; Claudia I. Henschke et al., Survival of Patients with Stage I Lung Cancer Detected on CT Screening, 355 New Eng. J. Med. 1763 (2006). Plaintiffs’ opening brief cites studies published as late as 2011 that purportedly show LDCT screening’s medical “acceptance.” Br. 21-22. Even then, those studies, as well as the recent tentative recommendation by the U.S. Preventive Services Task Force, suggest that LDCT screening may be advisable only for heavy smokers aged 55 or older with 30-pack-year histories—a more 59 limited population than the proposed class for which plaintiffs seek monitoring. U.S. Preventive Services Task Force, Screening for Lung Cancer: Draft Recommendation Statement, supra. Plaintiffs’ shifting timeframe for when LDCT screening purportedly achieved “acceptance” abundantly illustrates why a defendant cannot reasonably determine if and when a limitations period began. Plaintiffs’ proposed accrual standard would also allow plaintiffs to exploit the uncertain state of science to toll the statute of limitations indefinitely. Plaintiffs awaiting the perfection of certain medical monitoring techniques would be like tort victims who wait for judgment-proof defendants to secure a certain amount of money. Both seek to halt the statute of limitations until they can obtain the remedy they want. But this Court repeatedly has rejected standards which give “a plaintiff . . . the power to put off the running of the Statute of Limitations indefinitely.” Snyder, 81 N.Y.2d at 435; see also Blanco, 90 N.Y.2d at 774; Jensen v. Gen. Elec. Co., 82 N.Y.2d 77, 87 (1993). Plaintiffs argue that this Court should disregard the prospect of delay under their proposed accrual rule because PM USA would “not be[] prejudiced” since its “misconduct is a matter of public record.” Br. 53-54. But that baseless assertion assumes a concession that PM USA has never made and that this Court’s cases reject: that PM USA’s failure to manufacture only a lower-tar “safer” cigarette was wrongful. See Adamo, 11 N.Y.3d at 550 (rejecting such a claim when 60 plaintiffs could not show the alleged “safer” cigarette had the same functionality). Plaintiffs’ rejoinder is also irrelevant to the question before this Court: what accrual rule for a medical monitoring action should apply across industries. Plaintiffs also acknowledge the difficulties of tying accrual to the date of medical acceptance for a particular screening method, which would task plaintiffs with knowing when their desired screening method attains “accept[ance]” in the “medical community,” lest their claims become time-barred. See Br. 42-43. Plaintiffs propose a workaround: to delay accrual further until plaintiffs have actual knowledge that their exposure “rendered them proper candidates for surveillance.” Id.; see also id. at 61 n.39. But that rule is the very sort of “date of diagnosis test” this Court rejected in Blanco. Companies have no way to predict when or how such a standard would be met, and tying accrual to such unknowable contingencies “defies the essential premise of temporal finality embodied in Statutes of Limitation.” Ackerman, 84 N.Y.2d at 542. Plaintiffs’ proposed workaround would also magnify the disastrous consequences of their accrual rule. Only Massachusetts has tied accrual to the availability of a particular screening method, see Donovan, 455 Mass. at 228-29, and even Massachusetts has not delayed accrual until plaintiffs also actually know they are “proper” medical monitoring candidates. Adopting this anomalous accrual rule would give medical monitoring claimants everywhere perverse 61 incentives to forum-shop in New York. Under plaintiffs’ approach, any claimants who could have joined prior suits in other States seeking other types of monitoring might still file claims today in New York courts. Such plaintiffs could assert that their claims newly accrued in New York because they just discovered they were proper candidates for LDCT screening. Even though their claims would be time- barred in those other States, under New York law, “[a] dismissal on statute of limitations grounds by another state would not, by itself, bar the bringing of an action in this state on res judicata grounds.” SafeCard Servs., Inc. v. Am. Express Travel Related Servs. Co., 203 A.D.2d 65, 66 (1st Dep’t 1994); accord 73A N.Y. Jur. 2d Judgments § 418 (2013). New York could become a refuge for dilatory claimants, eviscerating the promise of finality, “a core principle of res judicata.” People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105, 124 (2008). 3. The Continuing-Wrong Doctrine Is Irrelevant Plaintiffs also argue that their medical monitoring claim was timely because PM USA’s continued sale of Marlboro cigarettes gave rise to new accrual events within three (or six) years of when plaintiffs sued in 2006. Br. 54-56. Again, this argument is irrelevant to the certified questions and was squarely rejected by the district court and Second Circuit. A363-64, A712-15. In any event, this Court rejected the same argument in Jensen v. General Electric Co., 82 N.Y.2d 77 (1993). Jensen noted that decades ago, in “a jurisprudential climate and landscape 62 where there was no discovery rule,” some lower New York courts followed the continuing-wrong doctrine, under which plaintiffs had three years from each new exposure to file a claim, but “that portion of damages for injuries sustained more than three years prior also became continuously barred each day.” Id. at 87-88. Jensen explained, however, that the continuing-wrong doctrine ended when the Legislature enacted the discovery rule in C.P.L.R. section 214-c(2), which shifted accrual of toxic exposure claims to the moment when plaintiffs know or should know of their injuries. Id. at 88. Thus, plaintiffs can recover “for all injuries regardless of the lapse of time between the exposure and the discovery,” but only if they file within three years of discovery. Id. at 87. By overruling the common-law exposure rule, the Legislature “intended no continuing-wrong exception to its new comprehensive, across-the-board rules.” Id. at 88. If the continuing wrong doctrine applied on top of the discovery rule, plaintiffs perversely could eliminate the statute of limitations and keep all injuries suffered to date live by exposing themselves to a harmful substance even after they knew it caused harm. Id. at 88-89. Jensen concluded “[t]he Legislature could not have intended or effected such a substantial, self-defeating and self-contradictory exercise that functionally excises” the limitations period and encourages plaintiffs to “sit[] on their rights and inhibit[] early intervention and remediation.” Id. at 89. 63 Plaintiffs respond to Jensen by stating that they “seek only injunctive relief.” Br. 56; see also id. at 66-67. But as discussed, the proposed cause of action is legal, not equitable. See supra at 38-40. And even an equitable claim would remain subject to the “date of injury rule,” because that is the “common-law accrual method” in toxic exposure cases. Jensen, 82 N.Y.2d at 91; Snyder, 81 N.Y.2d at 433, 435. This Court’s decisions have never “establish[ed] a date of last exposure rule” in toxic exposure cases. Snyder, 81 N.Y.2d at 433. Rather, “[f]or more than a half a century,” this Court “ha[s] uniformly held that such causes of action accrue upon injury.” Id. (emphasis added); accord Jensen, 82 N.Y.2d at 84. IV. This Court Should Reject Plaintiffs’ Invitation To Opine On Issues Already Decided By The Second Circuit A. The Only Issue Before This Court Is The Viability Of A Medical Monitoring Cause Of Action Under New York Law 1. Federal courts certify questions to state supreme courts to seek those courts’ views on unsettled, dispositive, and important questions of state law. Certification generally is limited to those questions because of the burdens that certification imposes on state courts and because federal courts ordinarily must decide state-law issues themselves. McCarthy v. Olin Corp., 119 F.3d 148, 153-54 (2d Cir. 1997). The United States Supreme Court has cautioned that “[i]t would be manifestly inappropriate” to certify anything other than an “uncertain question of state law whose resolution might affect the pending federal claim.” City of 64 Houston v. Hill, 482 U.S. 451, 471 & n.23 (1987). The Second Circuit thus certifies only outcome-determinative questions of New York law that this Court has not yet addressed and that cannot be predicted from existing precedents. Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA Inc., 344 F.3d 211, 220-21 (2d Cir 2003); see also N.Y. Const. art. 6, § 3(b)(9). This Court similarly limits its analysis of certified questions to “guidance” that is “dispositive of the precise law query as transmitted . . . . Everything else— including especially the relevant application and actual decision of the case—is, of course, within the exclusive juridical competence of [the certifying court].” Rooney v. Tyson, 91 N.Y.2d 685, 690 (1998); 4 N.Y. Jur. 2d Appellate Review § 569 (2013). When addressing a certified question, this Court considers itself “confined by key features of the [federal court’s] ruling,” including prior factual and legal determinations. In re Southeast Banking Corp., 93 N.Y.2d at 183. This Court thus has rejected pleas to “expand the scope of the certified question” to decide whether the certifying court properly dismissed other claims in a case. Kramer v. Phoenix Life Ins. Co., 15 N.Y.3d 539, 548 n.4 (2010). 2. The only issues before this Court are whether to allow a freestanding, equitable cause of action for medical monitoring, and if so, what its elements and accrual rules would be. The Second Circuit explained that these dispositive 65 questions alone warranted certification: this Court had no “controlling precedent,” and the lower New York courts offered no “clear guidance.” A745-46. Plaintiffs nonetheless contend that the Second Circuit contemplated that this Court could review the dismissal of plaintiffs’ other tort claims—issues that the Second Circuit already decided—by stating, “We do not intend this articulation of the above specified questions” about a medical monitoring cause of action “to limit the scope of the analysis . . . and we invite the Court of Appeals to expand upon or alter these questions as it deems appropriate.” A746 (emphases added); Br. 58-59, 72-73. But the intent of that language is unequivocal, and reflects the “common practice” of many certifying courts to “emphasize . . . that the state court is free to reformulate the questions as it sees fit” to allow the state court to choose the terms best suited to make new precedent on the certified questions. 17A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4248 (3d ed.). This Court occasionally has relied on such language to slightly reformulate questions. E.g., Barenboim v. Starbucks Corp., --- N.E.2d ----, 2013 WL 3197602 (N.Y. Jun. 26, 2013). But this Court has never deemed such language license to reconsider state law questions already decided by the federal courts. In the rare instances when the Second Circuit wishes to invite this Court to expand its inquiry, the Second Circuit expressly “invite[d] the New York Court of Appeals to expand the certification to cover any additional question of New York law involved in this 66 appeal that the Court chooses to answer.” Tri-State Empl. Servs., Inc. v Mountbatten Sur. Co., 295 F.3d 256, 262 n.5, 269 (2d Cir. 2002) (emphasis added); accord Izzarelli v. R.J. Reynolds Tobacco Co., No. 11-3865, slip op. at 12 (2d Cir. Sept. 10, 2013). The Second Circuit did not do so here, and it is inappropriate for plaintiffs to inject new questions now that this Court has accepted certification of the Second Circuit’s questions. B. Plaintiffs’ Arguments For Reversing The Second Circuit’s Rulings Are Meritless 1. The Second Circuit affirmed summary judgment on plaintiffs’ negligence and strict liability claims because there was no genuine issue of material fact that these claims were time-barred. This holding faithfully applied New York law. The Second Circuit properly observed that injury is an essential element of both negligence and strict liability claims. A709 (citing Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981) (negligence); Voss, 59 N.Y.2d at 107 (strict liability)); accord 14 N.Y. Prac., New York Law of Torts § 6:3 (negligence); 86 N.Y. Jur. 2d Products Liability § 101 (2013) (strict liability). Thus, based on plaintiffs’ own pleadings, any “injury” plaintiffs alleged based on an increased risk of lung cancer occurred in the mid-1990s, more than six years before they filed their complaint. A711-15. Those determinations are binding here. See Engel, 93 N.Y.2d at 207; In re Southeast Banking Corp., 93 N.Y.2d at 183. The Second Circuit could have accepted plaintiffs’ argument that they have suffered no injury 67 at all. Br. 62. But doing so would have rendered these claims “dismissible for failure to state a claim” under the Federal Rules of Civil Procedure. A709-10. Crediting that assertion also would have “pose[d] a conundrum for identifying the commencement of the limitations period” by wholly jettisoning the benchmark date-of-injury accrual rule governing tort claims. Id. Because plaintiffs purportedly suffered their injuries in the mid-1990s, plaintiffs’ negligence and strict liability claims were time-barred no matter if a three- or six-year limitations period applied. A711, A718. The Second Circuit properly rejected plaintiffs’ contention (renewed here, Br. 62-64) that these claims “[did] not accrue until a form of relief that [they] prefer[red] ha[d] become technologically feasible.” A715. For the reasons discussed above, supra at 51-53, and as the Second Circuit correctly concluded, “by the time [plaintiffs’] injuries arose in or before the mid-1990s, [they] could have brought suit to seek relief in the New York courts.” A718. The factual availability of plaintiffs’ preferred remedy, LDCT scanning, had no bearing on accrual because the availability of a remedy is not an element of these claims. See supra at 51-52. Plaintiffs effectively concede this by acknowledging that, “in conventional personal injury actions, the last occurrence necessary to trigger the accrual of a claim is typically the infliction of injury.” Br. 64. None of the cases that plaintiffs selectively excerpt here—the same cases the Second Circuit found inapposite—stands for a 68 contrary proposition. Instead, these cases either (i) confirm that injury triggers accrual, e.g., Vigilant, Britt, and Ely-Cruikshank, or (ii) recognize the irrelevant notion that accrual may be delayed post-injury by legal impediments to a suit. E.g., LaBello, 85 N.Y.2d at 706 (legal capacity to sue); Jacobus v. Colgate, 217 N.Y. 235, 245 (1916) (jurisdiction over claim). The Second Circuit likewise properly rejected plaintiffs’ theory, Br. 65-67, that PM USA’s continued sale of allegedly defective cigarettes implicated the “continuing tort doctrine.” A711-12, A714-15. For the reasons discussed above, this doctrine is a dead letter in the toxic-exposure context. See supra at 60-62. Plaintiffs cannot resuscitate their otherwise time-barred claims simply because they decided to continue smoking until they filed their complaint. 2. The Second Circuit also correctly affirmed summary judgment on plaintiffs’ UCC-based claim for breach of implied warranty, finding no genuine issue of material fact that PM USA’s cigarettes were “minimally safe when used in the customary, usual, and reasonably foreseeable manner.” A720. The court rejected plaintiffs’ argument that PM USA breached this warranty by failing to market a “safer” cigarette, concluding that “whether Philip Morris could have made Marlboro cigarettes safer . . . is not an issue that is material to the claim.” Id. This holding faithfully applied New York law. 69 “[T]he UCC’s concept of a ‘defective’ product requires an inquiry only into whether the product in question was ‘fit for the ordinary purposes for which such goods are used.’” Denny v. Ford Motor Co., 87 N.Y.2d 248, 258 (1995) (quoting UCC § 2-314(2)(c)). “The . . . inquiry focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners.” Id. at 258-59. But this implied warranty “does not mean that the product will fulfill [a] buyer’s every expectation. Rather, it has been observed, such a warranty provides for a minimal level of quality.” Id. at 258 n.4 (quotations omitted). Critically, “the feasibility of alternative designs or the manufacturer’s ‘reasonableness’ in marketing it in that unsafe condition” has no bearing on a plaintiff’s right to “recovery . . . upon a showing that the product was not minimally safe for its expected purpose.” Id. at 259 (emphasis added); accord 15 N.Y. Prac., New York Law of Torts § 16:3. Consequently, whether PM USA could have produced a “safer” cigarette, Br. 72-73, or whether plaintiffs knew that PM USA allegedly could have done so, id. at 71, is beside the point. Both the district court and Second Circuit concluded from the record that plaintiffs knew the dangers of cigarettes “in the years relevant to [their] complaint.” A420, A718. Plaintiffs conceded that they “had knowledge that Marlboros were dangerous and carcinogenic.” 2d Cir. Br. 40; accord Br. 71. The federal courts also found no genuine fact issue that Marlboro cigarettes were 70 minimally safe for their expected purpose. A420-22, A719-20. Those binding determinations end the inquiry. See Engel, 93 N.Y.2d at 207. CONCLUSION For the foregoing reasons, this Court should answer the first certified question in the negative and reject a cause of action for medical monitoring, thus making it unnecessary to reach the second certified question. If the second question is reached, however, this Court should carefully limit the elements of a medical monitoring cause of action and should hold that plaintiffs’ claims accrued when they allegedly experienced an increased risk of lung cancer warranting medical monitoring. Respectfully submitted, KENNETH J. PARSIGIAN LATHAM & WATKINS LLP John Hancock Tower, 20th Floor 200 Clarendon Street Boston, Massachusetts 021116 (617) 880-4510 Counsel for Defendant-Respondent Philip Morris USA Inc. Dated Completed: September 12, 2013 /s/ Kenneth J. Parsigian