Marcia L. Caronia, Linda McAuley and Arlene Feldman, Appellants,v.Philip Morris USA, Inc., Respondent.BriefN.Y.May 30, 2013 No argument requested Amicus Curiae submission 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 OF AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNCIL, INC. IN SUPPORT OF DEFENDANT- RESPONDENT PHILIP MORRIS USA, INC. Daniel K. Winters, N.Y. Bar # 2679785 REED SMITH LLP 599 Lexington Avenue 22nd Floor New York, NY 10022 212 521 5400 James M. Beck, p.h.v. app. pending REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 (215) 851-8168 Of Counsel: Hugh F. Young, Jr., Product Liability Advisory Council, Inc., 1850 Centennial Park Drive, Suite 510 Reston VA 20191 (703) 264-5300 David J. Bird, p.h.v. app. pending REED SMITH LLP 225 Fifth Ave. Pittsburgh, PA 15222 (412) 288-3131 Counsel for Amicus Curiae Product Liability Advisory Council, Inc. Date Completed: October 4, 2013 i DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f) The Product Liability Advisory Council, Inc. (“PLAC”) is a non-profit corporation with no parents, subsidiaries, or affiliates. It has 103 corporate members from a broad cross-section of American and international product manufacturers. See Attachment “A” (listing PLAC’s corporate members as of September 25, 2013). In addition, several hundred leading product liability defense attorneys are sustaining (non-voting) members of PLAC. ii TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iv STATEMENT OF INTEREST OF AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNCIL, INC. ................................................... 1 CERTIFIED QUESTIONS PRESENTED ................................................................ 3 STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY .......... 4 SUMMARY OF ARGUMENT ................................................................................. 5 ARGUMENT ............................................................................................................. 8 I. Creation Of An Expansive New Theory Of Tort Liability Should Only Result From Legislative Action, Not Judicial Decree. .................................... 8 II. The Court Should Follow The Majority Rule And Decline To Create An Independent Cause Of Action For Medical Monitoring Absent Present Physical Injury. ................................................................................. 17 A. An Independent Action For Medical Monitoring Would Create The Potential For Expansive Liability On A Wide Range Of Defendants, Imposing Enormous Costs On Consumers And Society................................................................... 21 B. Medical Monitoring Claims May Deplete Defendants’ Finite Resources To The Detriment Of Those Who Actually Become Ill. ....................................................................................... 27 C. Courts Have Been Unable To Articulate Rules For Medical Monitoring Claims That Prevent Extortionate Class Action Litigation And Avoid Potentially Unlimited Liability. ................... 29 iii III. The U.S. Supreme Court And Numerous Federal And State Courts Have Not Allowed Actions For Medical Monitoring. .................................. 35 A. The U.S. Supreme Court Has Rejected Actions For Medical Monitoring Under Federal Law. ...................................................... 36 B. The Majority Of Other States Disallows Claims For Medical Monitoring Absent Present Physical Injury. .................................... 37 IV. Plaintiffs’ Proposed Cause Of Action Would Be Inconsistent With This Court’s Precedents. ................................................................................ 45 CONCLUSION ........................................................................................................ 53 Attachment A: Corporate Members of the Product Liability Advisory Council, As Of September 25, 2013 .............................................................. 55 iv TABLE OF AUTHORITIES Cases Abusio v. Consolidated Edison Co., 238 A.D.2d 454, 656 N.Y.S.2d 371 (2d Dep't 1997) ........................................... 52 Acevedo v. Consol. Edison Co., Inc., 189 A.D.2d 497, 596 N.Y.S.2d 68 (1st Dep't 1993) ............................................ 51 Allen v. General Electric Co., 32 A.D.3d 1163, 821 N.Y.S.2d 692 (4th Dep't 2006) .......................................... 52 Alsteen v. Wauleco, Inc., 802 N.W.2d 212 (Wis. App. 2011), rev. denied, 808 N.W.2d 715 (Wis. 2011) ............................................................................... 45 Arias v. DynCorp, 928 F. Supp. 2d 10 (D.D.C. 2013) ....................................................................... 32 Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep’t 1984) .......... 46, 47, 48, 49, 50, 51 Avila v. CNH America LLC, 2007 WL 2688613 (D. Neb. Sept. 10, 2007) ....................................................... 44 Ayers v. Twp. of Jackson, 525 A.2d 287 (N.J. 1987) ..................................................................................... 42 Badillo v. Am. Brands, Inc., 16 P.3d 435 (Nev. 2001) .......................................................................... 18, 37, 38 Baity v. Gen. Elec. Co., 86 A.D.3d 948, 927 N.Y.S.2d 492 (4th Dep't 2011) ............................................ 50 Baker v. Westinghouse Elec. Corp., 70 F.3d 951 (7th Cir. 1995) .................................................................................. 22 Ball v. Joy Technologies, Inc., 958 F.2d 36 (4th Cir. 1991) ........................................................................... 18, 45 Bellevue S. Associates v. HRH Const. Corp., 78 N.Y.2d 282, 574 N.Y.S.2d 165, 579 N.E.2d 195 (1991) ......................... 19, 46 Blanco v. Am. Tel. & Tel. Co., 90 N.Y.2d 757, 666 N.Y.S.2d 536, 689 N.E.2d 506 (1997) ................................ 50 Bostick v. St. Jude Medical, Inc., 2004 WL 3313614 (W.D. Tenn. Aug. 17, 2004) ................................................. 44 v Bourgeois v. AP Green Industries, 716 So. 2d 355 (La. 1998) .................................................................................... 41 Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 (1984) ......................... 10, 11 Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999) .............................................. 25, 30, 32, 33, 34, 42 Bowerman v. United Illuminating, 1998 WL 910271 (Conn. Super. Dec. 15, 1998) .................................................. 43 Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ariz. App. 1987) ............................................................................. 31 Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515 (D. Kan. 1995) ....................................................................... 43 Campbell v. A.C. Equipment Services Corp., 610 N.E.2d 745 (Ill. App. 1993) ........................................................................... 43 Carey v. Kerr-McGee Chem. Corp., 999 F. Supp. 1109 (N.D. Ill. 1998) ....................................................................... 33 Carroll v. Litton Systems, Inc., 1990 WL 312969 (W.D.N.C. Oct. 29, 1990), adopted, 1991 WL 187277 (W.D.N.C. July 15, 1991), aff’d in part and rev’d in part on other grounds mem., 47 F.3d 1164 (4th Cir. 1995) ..................................................................... 44 Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973) ................................ 15 Cole v. Asarco, Inc., 256 F.R.D. 690 (N.D. Okla. 2009) ....................................................................... 44 Cook v. Rockwell International Corp., 755 F. Supp. 1468 (D. Colo. 1991) ............................................................... 22, 32 Curl v. American Multimedia, Inc., 654 S.E.2d 76 (N.C. App. 2007) .......................................................................... 44 Dangler v. Town of Whitestown, 241 A.D.2d 290, 672 N.Y.S.2d 188 (4th Dep't 1998) .......................................... 51 DiStefano v. Nabsico, Inc., 2 A.D.3d 484, 767 N.Y.S.2d 891 (2d Dep't 2003) ............................................... 52 Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009) ........................................................................ 32, 34 vi Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601 (W.D. Wash. 2001) ........................................................ 30, 31, 45 Edwards v. State, 804 So. 2d 886 (La. App. 2001) ........................................................................... 43 Exxon Mobil Corp. v. Albright, 71 A.3d 30 (Md.), on reconsideration in part, 71 A.3d 150 (2013) ............. 30, 31 Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005) ............................................................................................. 44 Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996 , 152 N.E.2d 249 (1958) ................................... 51 Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 741 N.Y.S.2d 9 (1st Dep't 2002) .............................................. 45 Gerardi v. Nuclear Util. Servs., Inc., 149 Misc. 2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. 1991) ....................................... 50 Goodall v. United Illuminating, 1998 WL 914274 (Conn. Super. Dec. 15, 1998) .................................................. 43 Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 934 N.Y.S.2d 43 , 958 N.E.2d 77 (2011) ................................... 45 Guillory v. American Tobacco Co., 2001 WL 290603 (N.D. Ill. March 20, 2001) ...................................................... 43 Hall v. United Parcel Serv. of America, Inc., 76 N.Y.2d 27, 556 N.Y.S.2d 21, 555 N.E.2d 273 (1990) ................. 12, 13, 14, 17 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001) .................................. 16 Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993) ........................................................... 30, 31, 32, 33, 34 Hartford Accident & Indem. Co. v. Village of Hempstead, 48 N.Y.2d 218, 422 N.Y.S.2d 47, 397 N.E.2d 737 (1979) .................................. 19 Henry v. Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005) .............................................. 17, 18, 24, 25, 27, 40 Hinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001) ......................................................... 27, 28, 38, 39, 43 Houston County Health Care Authority v. Williams, 961 So.2d 795 (Ala. 2006) ................................................................................... 43 vii Hunt v. American Wood Preservers Institute, 2002 WL 34447541 (S.D. Ind. July 31, 2002) ..................................................... 43 Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989) ................. 15, 16, 20 In re Chinese Drywall Cases, 80 Va. Cir. 69 (2010) ..................................................................................... 22, 45 In re Fosamax Products Liab. Litig., 248 F.R.D. 389 (S.D.N.Y. 2008) ................................................................... 22, 23 In re Hanford Nuclear Reservation Litigation, 534 F.3d 986 (9th Cir. 2007) ................................................................................ 37 In re Mary Nell Collins,, 233 F.3d 809 (3d Cir. 2000) ................................................................................. 28 In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994) ................................................................................... 33 In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005) ............................................................ 22, 23, 43 In re Welding Fume Products Liab. Litig., 245 F.R.D. 279 (N.D. Ohio 2007) ........................................................................ 29 In re West Virginia Rezulin Litig., 585 S.E.2d 52 (W. Va. 2003) .................................................................. 22, 23, 32 Jensen v. Bayer AG, 862 N.E.2d 1091 (Ill. App. 2007) ......................................................................... 43 Johnson v. Abbott Laboratories, 2004 WL 3245947 (Ind. Cir. Dec. 31, 2004) ....................................................... 43 Jones v. Brush Wellman Inc., 2000 WL 33727733 (N.D. Ohio Sept. 13, 2000) ................................................. 44 June v. Union Carbide Corp., 577 F.3d 1234 (10th Cir. 2009) ............................................................................ 37 Kennedy v. McKesson Co., 58 N.Y.2d 500, 462 N.Y.S.2d 421 , 448 N.E.2d 1332 (1983) ............................. 51 Lamping v. American Home Products, Inc., No. DV-97-85786, 2000 WL 35751402 (Mont. Dist. Feb. 2, 2000) ................... 32 Leibowitz v. Bank Leumi Trust Co. of New York, 152 A.D.2d 169, 548 N.Y.S.2d 513 (2d Dep't 1989) ........................................... 12 viii Lewis v. Lead Industries Ass'n, Inc., 793 N.E.2d 869 (Ill. App. 2003) ........................................................................... 43 Louis v. Caneel Bay, Inc., 2008 WL 4372941 (V.I. Super. July 21, 2008) .................................................... 45 Lowe v. Philip Morris USA, Inc., 183 P.3d 181 (Or. 2008) ....................................................................................... 41 M.G. v. A.I. Dupont Hospital for Children, 393 Fed. App’x 884 (3d Cir. 2010) ...................................................................... 43 Madden v. Creative Servs., Inc., 84 N.Y.2d 738, 622 N.Y.S.2d 478, 646 N.E.2d 780 (1995) ......................... 13, 14 Matter of New York Cnty. DES Litig., 89 N.Y.2d 506, 655 N.Y.S.2d 862, 678 N.E.2d 474 (1997) ................................ 50 McCormick v. Halliburton Co., 895 F. Supp. 2d 1152 (W.D. Okla. 2012) ............................................................ 44 McKenna v. Levy, 182 A.D. 678, 69 N.Y.S. 1009 (2d Dep't 1918) ..................................................... 8 Mehl v. Canadian Pacific Railway Ltd., 227 F.R.D. 505 (D.N.D. 2005) ............................................................................. 44 Merganthaler v. Asbestos Corp. of America, 480 A.2d 647 (Del. 1984) ..................................................................................... 43 Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997) ............................................ 24, 25, 26, 27, 29, 36, 37, 38, 51 Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007) .......................................................................... 31, 32 Miranda v. DaCruz, 2009 WL 3515196 (R.I. Super. Oct. 26, 2009) .................................................... 44 Mohler v. Jeke, 595 A.2d 1247 (Pa. 1991)..................................................................................... 35 Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983) ......... 11, 12, 13, 17, 21 Nat'l Tradesmen's Bank v. Wetmore, 79 Sickels 241, 124 N.Y. 241, 26 N.E. 548 (1891)............................................8, 9 Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135 (2003) ...................................................................................... 36, 37 ix Norwood v. Raytheon Co., 414 F. Supp. 2d 659 (W.D. Tex. 2006) ................................................................ 44 O'Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158, (1981) ............................. 19 Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773, 876 N.E.2d 1189 (2007) ....................... 8, 11, 14 Osarczuk v. Associated Universities, Inc., 36 A.D.3d 872, 830 N.Y.S.2d 711 (2d Dep't 2007) ............................................. 51 Palmer v. 3M Co., 2005 WL 5891911 (Minn. Dist. April 26, 2005) ................................................. 44 Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290 (N.D. Ga. 2005), aff'd, 230 Fed. App’x 878, 883 (11th Cir. 2007) .................................................................................................... 43 Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (N.Y. 2006) ....................... 20 Paulson v. 3M Co., 2009 WL 229667 (Minn. Dist. Jan. 16, 2009) ..................................................... 43 Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1 (Miss. 2007) .................................................................................... 40 Petito v. A.H. Robins Co., 750 So. 2d 103 (Fla. App. 1999) ................................................................... 32, 34 Pisciotta v. Old National Bancorp, 499 F.3d 629 (7th Cir. 2007) ................................................................................ 43 Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993) ......................................................................... 30, 31, 32 Purjet v. Hess Oil Virgin Islands Corp., 1986 WL 1200 (D.V.I. Jan. 8, 1986) .................................................................... 45 Ratliff v. Mentor Corp., 569 F. Supp.2d 926 (W.D. Mo. 2008) .................................................................. 34 Redland Soccer Club, Inc. v. Dep’t of the Army, 696 A.2d 137 (Pa. 1997).................................................................... 30, 31, 32, 33 Rhodes v. E.I. Du Pont de Nemours & Co., 253 F.R.D. 365 (S.D.W. Va. 2008) ...................................................................... 23 x Rosmer v. Pfizer, Inc., 2001 WL 34010613 (D.S.C. March 30, 2001) ..................................................... 44 Schiavone Constr. Co. v. Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982), revg. on dissent at 81 A.D.2d 221, 439 N.Y.S.2d 933 (1st Dep't 1981) ..................... 19, 46 Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824 (1936) ........................................................ 47, 48, 50 Schwan v. Cargill, Inc., 2007 WL 4570421 (D. Neb. Dec. 21, 2007) ........................................................ 44 Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714 , 188 N.E.2d 142 (1963) ........................ 48, 49 Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996)....................................................................................... 31 Sinclair v. Merck & Co., Inc., 948 A.2d 587 (N.J. 2008) ..................................................................................... 42 Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 599 N.Y.S.2d 515 , 615 N.E.2d 999 (1993) ............................... 49 Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp.2d 833 (N.D. Ill. 2008)..................................................................... 22 Stone v. Sterling Drug, Inc., 111 A.D.2d 1017, 490 N.Y.S.2d 468 (3d Dep't 1985) ......................................... 35 Sutton v. St. Jude Med., Inc., 292 F. Supp. 2d 1005 (W.D. Tenn. 2003), rev'd, 419 F.3d 568 (6th Cir. 2005) .............................................................................................................. 22, 31 Syms v. Olin Corp., 408 F.3d 95 (2d Cir. 2005) ................................................................................... 37 Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999) ........................................................................... 22, 29 Thompson v. American Tobacco Co., 189 F.R.D. 544 (D. Minn. 1999) .......................................................................... 43 Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920 , 391 N.E.2d 1002 (1979) ...................... 48, 49 Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969) ......... 9, 10, 11, 13, 14 xi Trimble v. ASARCO, Inc., 232 F.3d 946 (8th Cir. 2000), aff'g, 83 F. Supp. 2d 1034 (D. Neb. 1999) ........... 44 Trombetta v. Conkling, 82 N.Y.2d 549, 605 N.Y.S.2d 678 , 626 N.E.2d 653 (1993) .................. 11, 13, 14 Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398 , 450 N.E.2d 204 (1983) ............................... 45 Wayte v. Bowker Chem. Co., 180 A.D. 568, 168 N.Y.S. 122 (2d Dep't 1917) ..................................................... 9 Williams v. Supreme Council Am. Legion of Honor, 80 A.D. 402, 80 N.Y.S. 713 (2d Dep't 1903) ......................................................... 8 Williams v. Vill. of Port Chester, 72 A.D. 505, 76 N.Y.S. 631 (2d Dep't 1902) ......................................................... 9 Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849 (Ky. 2002)............................................................................. 39, 40 Wyeth, Inc. v. Gottlieb, 930 So. 2d 635 (Fla. Dist. Ct. App. 2006) ............................................................ 22 Xavier v. Philip Morris USA, Inc., No. C 10-02067 WHA, 2010 WL 3956860 (N.D. Cal. Oct. 8, 2010) ................. 18 Statutes 42 Pa. C.S.A. § 7102(a) ........................................................................................... 34 42 U.S.C. § 2210 ...................................................................................................... 51 Fla. Stat. Ann. § 768.1256(1) ................................................................................... 34 La. Civ. Code Ann. art. 2315 ................................................................................... 41 Utah Code Ann. § 78B-5-818(2) ............................................................................. 34 Rules C.P.L.R. § 214-c ................................................................................................ 49, 50 C.P.L.R. § 214-c(2) .................................................................................................. 20 Other Authorities ALI, Principles of the Law, “Aggregate Litigation” §2.04, comment b (2010) .................................................................................................................... 35 Am. Tort Reform Ass’n, Bringing Justice to Judicial Hellholes (2003), available at, ...................... 42 xii Andrew R. Klein, Rethinking Medical Monitoring, 64 Brook. L. Rev. 1 (1998) .................................................................................................................... 26 Editorial, Legislators need to restrict the legal industry on this one, Charleston Gazette (Feb. 19, 2003), available at 2003 WLNR 5447407 ............ 42 Group’s Unflattering Picture of State Is an Accurate Label, (Parkersburg, W. Va.) News & Sentinel (Nov. 14, 2003) .......................................................... 42 http://www.cancer.org/cancer/cancercauses/othercarcinogens/generalinform ationaboutcarcinogens/known-and-probable-human-carcinogens (visited Oct. 3, 2013) ......................................................................................................... 23 James A. Henderson, Jr. & Aaron D. Twerski, Asbestos Litigation Gone Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, & Medical Monitoring, 53 S.C. L. Rev. 815 (2002) ......................................... 29, 35 Judicial Conference Ad Hoc Committee on Asbestos Litigation, Report of the Ad Hoc Committee (1991) .............................................................................. 28 Kenneth S. Abraham, Liability for Medical Monitoring & the Problem of Limits, 88 Va. L. Rev. 1975 (2002) ...................................................................... 26 Lester Brickman, Lawyers’ Ethics & Fiduciary Obligation in the Brave New World of Aggregative Litigation, 26 Wm. & Mary Envtl. L. & Pol’y Rev. 243 (2001) ............................................................................................................. 28 Mark A. Behrens & Monica G. Parham, Stewardship for the Sick: Preserving Assets for Asbestos Victims Through Inactive Docket Programs, 33 Tex. Tech. L. Rev. 1 (2001) .......................................................... 29 Medical Monitoring in Toxic Tort Cases: Another Windfall for Texas Plaintiffs?, 33 Hous. L. Rev. 473 (1996) ............................................................. 18 Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J.L. & Pub. Pol’y 541 (1992) ............................... 28 Robert D. Mauk, McGraw ruling harms state’s reputation in law, medical monitoring, Charleston Gazette (WV), Mar. 1, 2003, available at, 2003 WLNR 5449929 ................................................................................................... 42 Victor E. Schwartz, et al., Medical Monitoring—Should Tort Law Say Yes?, 34 Wake Forest L. Rev. 1057 (1999) ................................................................... 18 1 STATEMENT OF INTEREST OF AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNCIL, INC.1 The Product Liability Advisory Council, Inc. (“PLAC”) is a non-profit association with 103 corporate members from a broad cross-section of American and international product manufacturers. See Attachment A (listing PLAC’s corporate members as of September 25, 2013). In addition, several hundred leading product liability defense attorneys are sustaining (non-voting) members of PLAC. PLAC seeks to contribute to the improvement and reform of the law affecting product liability in the United States and elsewhere. PLAC’s point of view reflects the experience of corporate members in diverse manufacturing industries. Since 1983, PLAC has filed over 1,000 briefs as amicus curiae in state and federal courts, including this Court, presenting the broad perspective of product manufacturers seeking fairness and balance in the application and development of product liability law. 1 No party or counsel for a party authored this brief, in whole or in part, or made a monetary contribution intended to fund either the preparation or submission of this brief. Defendant Philip Morris USA, Inc. is a corporate affiliate of Altria Client Services, Inc., a PLAC corporate member, both having the same parent, Altria Group, Inc. Other than paying the same dues as any PLAC corporate member, Altria Client Services, Inc. made no financial contribution to the preparation or submission of this brief. Nor has Altria Group, Inc., or any of its affiliates, made any financial contribution to the preparation or submission of this brief. 2 PLAC’s members have a strong interest in one of tort law’s fundamental premises—that only actual injuries should be compensated. PLAC believes that the law should not recognize a novel equitable cause of action that would allow individuals without present physical injury to sue over bare exposure to allegedly hazardous substances. Such litigation would entangle courts in the supervision of elaborate, open-ended, and scientifically questionable medical surveillance programs. This amicus curiae brief is respectfully submitted to the Court to address the public importance of this issue apart from and beyond the immediate interests of the parties to this case. 3 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? 4 STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY PLAC adopts the statement of relevant facts and procedural history of Defendant-Respondent Philip Morris USA, Inc. (“PM USA”). See PM USA Br. 3- 11. Most relevant to PLAC’s arguments, in 2006, Plaintiffs filed this putative class action against PM USA, alleging claims for negligence, strict liability, and breach of implied warranty. A23-40. Plaintiffs asserted these claims on behalf of themselves and a putative class of New Yorkers who are at least 50 years old, with at least a 20 pack-year history of smoking PM USA’s Marlboro brand cigarettes. Id. Plaintiffs affirmatively alleged that neither they nor any members of the putative class have suffered, or are suffering, any physical injury or illness as a result of PM USA’s alleged conduct. Id. Plaintiffs sought for themselves and the putative class an “equitable” remedy: creation of a long-term program of education, counseling, and medical surveillance using low-dose computed tomography (“LDCT”) scans to detect the possible future onset of lung cancer. A66-69. In February 2010, the district court dismissed Plaintiffs’ negligence and strict liability claims as time-barred, A359-62, but permitted an amendment to Plaintiffs’ complaint asserting an independent cause of action for medical monitoring. A368. Plaintiffs did so, also characterizing this new claim as “equitable.” A389-91. PM USA then moved to dismiss the new cause of action 5 for failure to state a claim upon which relief could be granted and sought summary judgment on breach of implied warranty, the only claim remaining from Plaintiffs’ original complaint. In January 2011, the district court granted PM USA’s motions. A408-22. In May 2013, the Second Circuit “affirm[ed] the judgment of the district court to the extent that it dismissed Plaintiffs’ claims for negligence, strict liability, and breach of the implied warranty of merchantability.” A476. Solely as to Plaintiffs’ independent claim for medical monitoring, the Second Circuit certified the questions presented above. A744-46. On May 30, 2013, this Court accepted the certified questions for consideration. Thus, Plaintiffs necessarily seek more than just a “medical monitoring” remedy for physically uninjured persons. Instead, they advocate an “independent” cause of action for medical monitoring, separate and apart from any existing legal theory. They seek to pursue this “independent” claim despite all their traditional causes of action being barred by the statute of limitations. SUMMARY OF ARGUMENT Plaintiffs ask this Court to recognize a new cause of action, grounded in equity and independent of the traditional requirements of tort law, for the exclusive benefit of persons who allege that they have: (1) exposed themselves voluntarily and repeatedly to high levels of allegedly hazardous substances; and (2) reached a 6 certain age without developing any present physical injury that would support a traditional tort action. Pls. Br. 18-21, 23-27. As Plaintiffs candidly admit, this equitable cause of action would enable vast numbers of individuals to sue a wide range of defendants, large and small, for supposed wrongful conduct in connection with exposures to many types of allegedly hazardous substances. If successful, such actions would compel those defendants to fund elaborate court-run public health programs for the benefit of classes of individuals exposed to the same substances, also without developing any present physical injury. Pls. Br. 23 (describing multiple facets of requested surveillance). Such actions would invariably involve hiring special masters, physicians, nurses, and technicians, purchasing equipment and software, and creating medical protocols for patient diagnosis and subsequent care. Id. Because such actions could only be brought by persons without any present physical injury, they could not proceed except as class actions. Id. at 23, 44. Unsurprisingly, an independent cause of action for medical monitoring in the absence of present physical injury lacks any foundation in the jurisprudence of this Court. In analogous circumstances, the Court has refused to create new causes of action at law or in equity or to make other significant changes to long-settled common-law rules. Instead, this Court ordinarily has left extensive legal changes to legislative action, not judicial decree. Even when invited by the Legislature to 7 act on a novel legal theory, the Court has proceeded with the utmost caution. At bottom, the Court’s precedents require that significant legal innovations raising multiple policy issues be left to the Legislature. The Court should follow that prudent course here. The parties’ briefs demonstrate that medical monitoring implicates a broad range of complex public policy issues, warranting legislative, not judicial, action. These policy-related concerns counsel against recognition of an independent cause of action for medical monitoring, absent present physical injury. The Court should avoid the jurisprudential swamp in which other courts have floundered for decades. Medical monitoring recovery is best left to the deliberate consideration of the Legislature. The U.S. Supreme Court and most state high courts have declined to extend traditional causes of action to allow medical monitoring absent present physical injury. Even among the minority of states permitting some form of medical monitoring claims by uninjured persons, a clear majority rejects the sort of independent equitable cause of action sought here. Plaintiffs are advancing the most radical form of an already novel recovery theory. No decision by this Court supports Plaintiffs’ position, and their proposed cause of action is inconsistent with a large body of law. New York’s intermediate courts have reached inconsistent results. Decisions relied on by Plaintiffs rest on 8 flawed premises, exemplify the jurisprudential problems inherent in medical monitoring claims, and do not support the novel cause of action being proposed. Thus, this Court should answer the first certified question in the negative and reject an independent action for medical monitoring absent present physical injury. So ruling would moot the second certified question.2 ARGUMENT I. Creation Of An Expansive New Theory Of Tort Liability Should Only Result From Legislative Action, Not Judicial Decree. Plaintiffs’ arguments for an independent cause of action for medical monitoring are founded on the “ancient maxim that ‘equity will not suffer a wrong without a remedy’.” Pls. Br. 25.3 Yet, for more than a century, this and other courts have understood this maxim as “not absolutely true” and reflecting only a desire to develop the law in a reasonable and pragmatic fashion. Ortega v. City of New York, 9 N.Y.3d 69, 78, 845 N.Y.S.2d 773, 778, 876 N.E.2d 1189, 1194 (2007) (describing the maxim as a “desire” constrained by many legal and prudential considerations); Nat’l Tradesmen’s Bank v. Wetmore, 79 Sickels 241, 124 N.Y. 2 Thus, PLAC does not address the second certified question. Nor does PLAC discuss matters relevant only to Plaintiffs’ original claims, the dismissal of which was affirmed by the Second Circuit, and which are not the subject of either certified question. 3 Quoting McKenna v. Levy, 182 A.D. 678, 689, 69 N.Y.S. 1009, 1016 (2d Dep’t 1918), and Williams v. Supreme Council Am. Legion of Honor, 80 A.D. 402, 406, 80 N.Y.S. 713, 716 (2d Dep’t 1903) (quotations and citation omitted). 9 241, 251, 26 N.E. 548, 550 (1891); (describing the maxim as “not absolutely true”); Williams v. Vill. of Port Chester, 72 A.D. 505, 512-13, 76 N.Y.S. 631, 636 (2d Dep’t 1902) (quoting Nat’l Tradesmen’s Bank; describing the maxim as “expressing a principle … rather than precedent, that courts will seek in considering whether any or what remedy may be had in the administration of justice”). In particular, “[t]he maxim, ‘where there is a wrong there is a remedy,’ is not a panacea for ill pleading when attacked by demurrer.” Wayte v. Bowker Chem. Co., 180 A.D. 568, 572, 168 N.Y.S. 122, 125 (2d Dep’t 1917). “While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.” Tobin v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 561, 249 N.E.2d 419, 424 (1969). Thus, when considering novel causes of action, legal theories, or remedies in law or equity, this Court has approached them as a “problem … to limit the legal consequences of [alleged] wrongs to a controllable degree.” Id. In particular, the Court has emphasized that it must consider the requirements of established causes of action in law and equity, the twin problems of “unforeseeable consequences” and “unlimited liability,” and the interests of those who are not before the Court. Id. at 616, 301 N.Y.S.2d at 559, 249 N.E.2d at 423. 10 In Tobin, the Court refused to create a cause of action for negligently caused emotional distress resulting from actual or threatened injury to a third-person where the plaintiff: (1) was not a bystander to the primary tort; and (2) suffered no contemporaneous or consequential physical injury. The Court rejected the plaintiff’s vague and overbroad appeals to the same equitable maxim Plaintiffs assert here; and instead followed established tort doctrine reflected in prior precedent and the Restatement (Second) of Torts. Id. at 617-18, 301 N.Y.S.2d at 560-61, 249 N.E.2d at 423-24. The Court expressed serious concerns about a lack of “a rational way to limit the scope of liability” under the proposed cause of action. Id. at 618, 301 N.Y.S.2d at 561, 249 N.E.2d at 424. Some types of risk are “pervasive and inevitably realized at one time or another,” and there was “no rational practical boundary for liability.” Id. at 618-19, 301 N.Y.S.2d at 562, 249 N.E.2d at 424. Thus, the Court refused to expand liability. “[W]hichever way one turns in permitting a theory of recovery one is entangled in the inevitable ramifications which will not stay defined or limited. There are too many factors and each too relative to permit creation of only a limited scope of liability or duty.” Id. at 619, 301 N.Y.S.2d at 561, 249 N.E.2d at 424; see also Bovsun v. Sanperi, 61 N.Y.2d 219, 229, 473 N.Y.S.2d 357, 361, 461 N.E.2d 843, 847 (1984) (applying same considerations to permit a narrower form of bystander liability under the “zone of danger” doctrine recognized by the Restatement (Second) of Torts); 11 Trombetta v. Conkling, 82 N.Y.2d 549, 553-54, 605 N.Y.S.2d 678, 679-80, 626 N.E.2d 653, 654-55 (1993) (refusing to expand the “strict” and “objective” cause of action allowed in Bovsun). “[W]hile the desire to provide an avenue to redress wrongs is certainly an important consideration underlying [this Court’s] tort jurisprudence,” Ortega, 9 N.Y.3d at 78, 845 N.Y.S.2d at 778, 876 N.E.2d at 1194, liability in law or equity always depends on “balancing competing interests” and a “weigh[ing] [of] other judicial and social policy concerns.” Id. at 78-79, 845 N.Y.S.2d at 778, 876 N.E.2d at 1194. Thus, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300-01, 461 N.Y.S.2d 232, 235, 448 N.E.2d 86, 89 (1983), refused to allow at-will employees to sue for wrongful discharge. Consistent with the Tobin line of cases, the Court pointed out that the proposed cause of action would abandon a “long- settled” common-law rule. Id. at 300-01, 461 N.Y.S.2d at 235, 448 N.E.2d at 89 (describing expansion of liability as a “fundamental question”). Murphy also explained how recognition of the novel claim would inevitably impact a host of jurisprudential and policy issues concerning traditional contract rules, “the multifarious types of employment[,] and the various circumstances of discharge.” Id. at 302, 461 N.Y.S.2d at 236, 448 N.E.2d at 90. For all these reasons, the Court concluded “that recognition in New York State of tort liability for what has 12 become known as abusive or wrongful discharge should await legislative action.” Id. at 302, 461 N.Y.S.2d at 236, 448 N.E.2d at 90.4 In Hall v. United Parcel Serv. of America,, Inc., 76 N.Y.2d 27, 556 N.Y.S.2d 21, 555 N.E.2d 273 (1990), the Court refused to create a cause of action for alleged misuse of lie detector tests. Hall also carefully considered how the proposed cause of action would disrupt the requirements of established causes of action in law and equity—particularly the protection of one’s reputation “through the traditional remedies for defamation.” Id. at 32-33, 556 N.Y.S.2d at 24-25, 555 N.E.2d at 276- 77. That a plaintiff could not “avail himself of those remedies,” because of common-law limits on the scope of the action, did not justify creation of a new cause of action by judicial decree. Id. at 31, 556 N.Y.S.2d at 27, 555 N.E.2d at 276 (citations omitted). Expanding liability was unsound because such a significant change to existing law would necessitate addressing numerous complicated “judicial and social policy considerations.” The magnitude of and complexity of the legal departure belied the plaintiff’s argument that “some governmental oversight and regulation may be desirable[.]” Id. at 33-34, 556 4 The Legislative response to Murphy vindicated the Court’s judicial restraint. Instead of abolishing the at-will doctrine, it enacted Labor Law § 740, commonly known as the “Whistleblowers’ Statute” (L 1984, ch 660). See Leibowitz v. Bank Leumi Trust Co. of New York, 152 A.D.2d 169, 175, 548 N.Y.S.2d 513, 516 (2d Dep’t 1989). The law created a carefully tailored cause of action for retaliatory discharge in certain specific and circumscribed situations while otherwise leaving the at will doctrine intact. Id. 13 N.Y.S.2d at 25, 555 N.E.2d at 277. As in Murphy, the Court held that social problems “are best and more appropriately explored and resolved by the legislative branch of our government … particularly where … there are competing interests at stake.” Id. at 34, 556 N.Y.S.2d at 25, 555 N.E.2d at 277. Likewise, a novel cause of action for “third-party intrusions on attorney- client confidences” was rejected in Madden v. Creative Servs., Inc., 84 N.Y.2d 738, 622 N.Y.S.2d 478, 646 N.E.2d 780 (1995), despite the “supervening societal importance” of those confidences. Id. at 746, 622 N.Y.S.2d at 482, 646 N.E.2d at 783. The Court affirmed that it exercises its inherent power to develop tort law “with care, mindful that a new cause of action will have foreseeable and unforeseeable consequences, most especially the potential for vast, uncircumscribed liability.” Id. at 746, 622 N.Y.S.2d at 482, 646 N.E.2d at 784.5 In view of existing legal protections, no compelling reason existed to embark upon the extensive legal changes being sought. Id. at 746, 622 N.Y.S.2d at 482, 646 N.E.2d at 784. The Legislature had also been active in this area, emphasizing the need for judicial restraint. Id. at 746, 622 N.Y.S.2d at 482, 646 N.E.2d at 784. Critically, the plaintiff did not allege any present physical injury from the alleged misconduct—only “a generalized fear for personal safety and security that might 5 Citing Trombetta, 82 N.Y.2d, at 554, 605 N.Y.S.2d at 681, 626 N.E.2d 653, and Tobin, 24 N.Y.2d at 615, 301 N.Y.S.2d at 558, 249 N.E.2d at 422. 14 accompany a theft or trespass on one’s property” Id., at 747, 622 N.Y.S.2d at 482, 646 N.E.2d at 784. Therefore, “[a] new cause of action … should at least require some element of harm to plaintiffs that arises directly from a breach.” Id. at 747, 622 N.Y.S.2d at 482, 646 N.E.2d at 784.6 Ortega followed these precedents, and thus left for the Legislature whether to create a new cause of action for third-party spoliation of evidence. Ortega, 9 N.Y.3d at 79, 845 N.Y.S.2d at 778-79, 876 N.E.2d at 1194-95. The Court rejected the same vague appeals to “a remedy for every wrong” in favor of rigorous analysis of established legal actions and remedies and “other judicial and social policy concerns” Id. at 79, 845 N.Y.S.2d at 778, 876 N.E.2d at 1194 (citing Tobin, Trombetta, Hall, and Madden). Other jurisdictions had taken divergent approaches to the proposed spoliation tort, resulting in “little consensus regarding [the new tort’s] elements.” Id. at 77-78, 845 N.Y.S.2d at 777-78, 876 N.E.2d at 1193-94. Retaining established New York law was preferable, given other courts’ inconsistent results, and the problems of proof, remedy, and damages posed by the new tort. Id. at 79, 845 N.Y.S.2d at 778-79, 876 N.E.2d at 1194-95 (concluding that the Court was “not convinced that existing New York remedies are inadequate 6 As here, Madden decided questions of New York law certified by the Second Circuit. The Court’s careful attention to “facts as presented” and questions actually certified belies Plaintiffs’ attempt here to obtain plenary review of already- decided issues beyond the certified questions. 15 to deter spoliation or appropriately compensate its victims”). See also Codling v. Paglia, 32 N.Y.2d 330, 345-46, 345 N.Y.S.2d 461, 472, 298 N.E.2d 622, 630 (1973) (upholding Legislature’s responsibility to change settled common-law rules concerning changes in the doctrine of contributory negligence). Indeed, even when the Court found itself—unlike here—operating in the wake of a legislative initiative supporting a change to the common law, it cautiously stayed within the boundaries of the Legislature’s actions. In 1986, the Legislature created a statutory exception to the “long-standing rule in this State that the limitations period [of a cause of action] accrued upon exposure in actions alleging personal injury caused by toxic substances,”7 which revived (for one year) claims by plaintiffs allegedly injured by a particular product. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 503-04, 541 N.Y.S.2d 941, 944, 539 N.E.2d 1069, 1072 (1989). The new statute “consciously created” “reasonable expectations” of recovery on the revived claims. Id. at 507, 541 N.Y.S.2d at 947, 539 N.E.2d at 1075. In light of the Legislature’s manifest intent, the Court in Hymowitz judged it appropriate to relax a traditional proof-of-causation requirement and to allow market share liability for cases subject to the statute. Id. at 514, 541 N.Y.S.2d at 951, 539 N.E.2d at 1079. 7 This rule and its statutory modification are discussed in more detail, infra pp. 48-51. 16 Hymowitz made clear, however, that its market-share-based departure from traditional causation standards was “a singular case” raising an “unusual scenario.” Id. at 507-08, 541 N.Y.S.2d at 947, 539 N.E.2d at 1075. In Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 240, 240-42, 727 N.Y.S.2d 7, 20, 750 N.E.2d 1055, 1067-68 (2001), plaintiffs sought to extend market share liability generally to other products. The Court refused. Instead it reaffirmed the law’s traditional proof-of- causation requirement and refused to extend the “novel theory” of market liability beyond cases subject to the “clear policy decision” of the Legislature. Id. at 240, 727 N.Y.S.2d at 19, 750 N.E.2d at 1067. The Legislature’s action was “key.” Id. at 240, 727 N.Y.S.2d at 19, 750 N.E.2d at 1067. Otherwise, the expansion of liability was excessive: [P]laintiffs here have not shown a set of compelling circumstances akin to those in Hymowitz justifying a departure from traditional common-law principles of causation. This case challenges us to rethink traditional notions of duty, liability and causation. Tort law is ever changing; it is a reflection of the complexity and vitality of daily life. Although plaintiffs have presented us with a novel theory … we are unconvinced that, on the record before us, the duty plaintiffs wish to impose is either reasonable or circumscribed. Hamilton, 96 N.Y.2d at 242, 727 N.Y.S.2d at 20, 750 N.E.2d at 1068. Thus, where other plaintiffs have advocated similarly expansive new species of tort liability, this Court has held over and over again that its inherent power to develop tort law is employed with extreme caution and not in a manner that creates dramatic legal changes, unlimited liability, and unforeseen consequences. Where, 17 as here, a proposed cause of action would transgress long-settled legal rules and draw the Court into a maze of complicated judicial and social policy considerations, the proper course is restraint, so that the Legislature can consider whether and how to address such issues. Murphy, 58 N.Y.2d at 302, 461 N.Y.S.2d at 236, 448 N.E.2d at 89-90. The Legislature has infinitely greater resources and procedural means to discern the public will, to examine the variety of pertinent considerations, to elicit the views of the various segments of the community that would be directly affected and in any event critically interested, and to investigate and anticipate the impact of imposition of such liability. Hall, 76 N.Y.2d at 34, 556 N.Y.S.2d at 25, 555 N.E.2d at 277. II. The Court Should Follow The Majority Rule And Decline To Create An Independent Cause Of Action For Medical Monitoring Absent Present Physical Injury. Other courts and commentators have recognized that medical monitoring claims entail significant policy-laden legal changes that are most appropriately left to the legislative branch of government. For example, in Henry v. Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005), the Supreme Court of Michigan rejected a claim for medical monitoring, holding that it would have to weigh benefits against costs for individuals already injured, for the judicial system, and for “those responsible for administering and financing medical care.” Id. at 695. Because such a balancing process would necessarily require extensive fact-finding and the weighing of important, and sometimes conflicting, policy concerns, and because here we lack sufficient 18 information to assess intelligently and fully the potential consequences of our decision, we do not believe that the instant question is one suitable for resolution by the judicial branch. Id. at 695. See also Badillo v. Am. Brands, Inc., 16 P.3d 435, 440 (Nev. 2001) (altering common-law rights, creating new causes of action, and providing new remedies for wrongs is generally a legislative, not a judicial, function); Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir. 1991) (approval of medical monitoring claims best left to Virginia’s legislature).8 The Court should adhere to its traditional line of precedents, refuse to recognize the new cause of action that Plaintiffs seek, and allow the Legislature to pass upon these issues. This Court’s recognition of “medical monitoring” as recoverable by asymptomatic individuals would entail a sudden, dramatic shift in established law. The independent, equitable cause of action that Plaintiffs demand here has aptly been described as a “new plaintiff-friendly super tort.” Xavier v. Philip Morris USA, Inc., No. C 10-02067 WHA, 2010 WL 3956860, at *3-4 (N.D. Cal. Oct. 8, 2010) (rejecting independent action notwithstanding California’s recognition of a medical monitoring “remedy”). As the parties’ briefs demonstrate, 8 See Victor E. Schwartz, et al., Medical Monitoring—Should Tort Law Say Yes?, 34 Wake Forest L. Rev. 1057, 1061-63, 1075 (1999) (arguing that the weighing of competing public policy considerations is a legislative rather than judicial role); Carey C. Jordan, Medical Monitoring in Toxic Tort Cases: Another Windfall for Texas Plaintiffs?, 33 Hous. L. Rev. 473, 497 (1996) (concluding that consideration of medical monitoring requires a “balancing act” that “may be better suited for the … [l]egislature, as it is the voice of the people”). 19 for this Court to recognize an independent, equitable cause of action for medical monitoring absent present physical injury would require resolution of numerous unsettled issues of legal doctrine and public policy. Such issues include: • Whether the present physical injury requirement of traditional tort law should be retained, modified, or done away with altogether. Pls. Br. 18-19, 38 n.33, 61; PM USA Br. 14-15. • Whether to create an exception to the long-standing economic loss rule9 of traditional tort law, for the costs of medical testing, in the absence of any other injury. PM USA Br. 14-15. • Whether to create an exception to New York’s single controversy rule10 should a plaintiff seeking medical monitoring later suffer actual injury. Pls. Br. 40. • Whether recovery of medical monitoring costs by large numbers of uninjured persons should be based upon fault (intentional conduct or negligence) or strict liability. Pls. Br. 38 n.33; PM USA Br. 42. • Whether “deterrence,” a consideration usually associated with punitive damages (not sought here),11 is a proper justification for a theory of liability based on equity, strict liability, or negligence. Pls. Br. 50-51. 9 See Bellevue S. Associates v. HRH Const. Corp., 78 N.Y.2d 282, 293, 574 N.Y.S.2d 165, 169, 579 N.E.2d 195, 200 (1991); Schiavone Constr. Co. v. Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982), revg. on dissent at 81 A.D.2d 221, 439 N.Y.S.2d 933 (1st Dep’t 1981). 10 See O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 688 429 N.E.2d 1158, 1159 (1981). 11 See Hartford Accident & Indem. Co. v. Village of Hempstead, 48 N.Y.2d 218, 222-24, 422 N.Y.S.2d 47, 50-51, 397 N.E.2d 737, 740-41 (1979). 20 • Whether causation can be established under Plaintiffs’ theory that any exposure is a “substantial contributing factor” or whether traditional “but for” causation should be retained. Pl. Br. 16 (asserting an “each puff” theory12), 38 n.33; PM USA Br. 42-46. • Whether the Court can, or should, modify New York’s legislatively created discovery rule, N.Y.C.P.L.R. § 214-c(2), so that the rule becomes a technological moving target, and the statute of limitations runs anew each time scientific advances arguably create a new monitoring “remedy.” Pls. Br. at 41-42, 55-57, PM USA Br. 57-59. • Whether a common-law recovery of medical monitoring expenses has become redundant or unnecessary given the recently enacted medical screening provisions of federal health care legislation. PM USA Br. 22-24. • Whether recovery of medical monitoring costs by uninjured persons should be limited to environmental torts (where such claims first arose) or should be extended to consumer products already subject to well-established product liability law. PM USA Br. 34. • Whether courts should be in the business of directing “programs” involving long-term counseling, diagnostic testing, and preventive medical care to large numbers of people. Pls. Br. 23-24; PM USA Br. 39. • Whether equity should provide a remedy for time-barred legal claims for damages, where only the cause of action’s name is changed. Pls. Br. 25-27, 31, 39-40. Here, unlike Hymowitz, no recently enacted statute can reasonably be viewed as indicating legislative assent to the cause of action that these Plaintiffs 12 See Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 449-50, 824 N.Y.S.2d 584, 591, 857 N.E.2d 1114, 1122 (N.Y. 2006) (requiring “a scientific expression of [a plaintiff’s exposure level” for expert causation opinions). 21 demand. Nor does any statute or regulation resolve the plethora of complex issues of legal doctrine and public policy associated with their claims. To the contrary, this is a quintessential case of the Court being asked to create a new cause of action that dramatically alters long-settled legal rules, with no foundation other than Plaintiffs’ particular views of public policy. Under these circumstances, the Court has made its restrained approach abundantly clear, so that the Legislature can balance the many social and legal issues that medical monitoring recovery implicates. Murphy, 58 N.Y.2d at 302, 461 N.Y.S.2d at 236, 448 N.E.2d at 89-90. A. An Independent Action For Medical Monitoring Would Create The Potential For Expansive Liability On A Wide Range Of Defendants, Imposing Enormous Costs On Consumers And Society. Although the present case arises in the context of the manufacture and sale of cigarettes, this Court’s recognition of an independent, equitable cause of action for medical monitoring absent present physical injury would risk a flood of class- action litigation, as well as unpredictable and unlimited liability, for many entities, both small and large, that manufacture, distribute, use, or process numerous products currently available for legal purchase. Plaintiffs appear to envision a cause of action encompassing consumer products: (1) emitting certain forms of “radiation;” (2) containing substances that may increase the risk of any type of cancer; or (3) containing any other potentially “toxic” or “hazardous” feature that may increase the risk of developing other injuries or illness later in life. Pls. Br. 22 36. In other jurisdictions, medical monitoring class actions have been brought for exposure to a wide array of products, including products containing asbestos,13 industrial chemicals,14 radiation emitting materials,15 prescription drugs,16 biological substances,17 medical devices, 18 building materials,19 and cosmetics.20 Such actions have also sought medical monitoring of asymptomatic individuals for 13 E.g., Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). 14 E.g., Hinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001) (polychlorinated biphenyls (PCB)); Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1 (Miss. 2007) (beryllium); Redland Soccer Club, Inc. v. Dep’t of the Army, 696 A.2d 137 (Pa. 1997) (volatile organic compounds, semi-volatile organic compounds, and metals). 15 E.g., Norwood v. Raytheon Co., 414 F. Supp. 2d 659 (W.D. Tex. 2006) (radar); Cook v. Rockwell International Corp., 755 F. Supp. 1468 (D. Colo. 1991) (nuclear fuel). 16 E.g., In re Fosamax Products Liab. Litig., 248 F.R.D. 389 (S.D.N.Y. 2008) (osteoporosis medications); Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849 (Ky. 2002) (appetite suppressants fenfluramine and phentermine (Fen-Phen)); In re West Virginia Rezulin Litig., 585 S.E.2d 52 (W. Va. 2003) (diabetes medication). 17 E.g., In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005) (hormone replacement therapies); Wyeth, Inc. v. Gottlieb, 930 So. 2d 635 (Fla. Dist. Ct. App. 2006) (same). 18 E.g., Sutton v. St. Jude Med., Inc., 292 F. Supp. 2d 1005 (W.D. Tenn. 2003) (“aortic connector”), rev’d, 419 F.3d 568 (6th Cir. 2005). 19 E.g., Baker v. Westinghouse Elec. Corp., 70 F.3d 951 (7th Cir. 1995) (insulation); In re Chinese Drywall Cases, 80 Va. Cir. 69 (2010) (drywall). 20 E.g., Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp.2d 833, 836 (N.D. Ill. 2008) (lipstick). 23 a wide range of medical conditions and illnesses that could develop over time— from cancer to liver disease, cardiovascular disease, and elevated cholesterol.21 Indeed, because society’s knowledge of the risks from exposure to many substances is constantly developing, it is impossible to fathom what types of conduct and products could be subject to litigation and liability under an independent, equitable cause of action for medical monitoring.22 The possibilities for such claims are limited only by the imaginations of plaintiffs’ attorneys. It is conceivable, for example, that litigants could bring class-wide claims for medical monitoring against soda manufacturers, alleging sugar substitutes cause an unreasonable increased risk of cancer, while other litigants could simultaneously sue the same defendants, raising class-action allegations that products containing high fructose corn syrup contribute to an increased risk of diabetes or other obesity-related illnesses. 21 E.g., Rhodes v. E.I. Du Pont de Nemours & Co., 253 F.R.D. 365 (S.D.W. Va. 2008) (liver disease and elevated cholesterol); In re Fosamax Products Liab. Litig., 248 F.R.D. at 391 (osteonecrosis of the jaw); In re Prempro, 230 F.R.D. at 557 (cardiovascular disease, stroke, venous thromboembolism, and pulmonary embolism, Alzheimer’s disease, and dementia); Wood, 82 S.W.3d at 851 (heart valve abnormalities); Paz, 949 So.2d at 3 (non-cancerous lung disease); W. Va. Rezulin Litig., 585 S.E.2d at 59 (liver disease and injury). 22 For example, it has been postulated that the risk of certain forms of cancer may be increased by exposure to such everyday products as artificial sweeteners, talcum powder, makeup, hairspray, and plastics. See http://www.cancer.org/cancer/cancercauses/othercarcinogens/generalinformationab outcarcinogens/known-and-probable-human-carcinogens (visited Oct. 3, 2013). 24 The potential for unlimited and unpredictable litigation and liability has been recognized repeatedly by courts rejecting such claims. For, example, in Metro- North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 434, 442 (1997) (“Buckley”), the United States Supreme Court acknowledged that “contacts, even extensive contacts, with serious carcinogens are common,” and that “tens of millions of individuals may have suffered exposure to substances that might justify some form of substance-exposure-related medical monitoring.” Given this potentially broad scope, the Court was “troubled … by the potential systemic effects of creating a new, full-blown, tort law cause of action[,]” including (1) a “flood” of claims based on fear and speculation; (2) a blurring of claims that are “reliable and serious” and claims that “unreliable and relatively” trivial; (3) a “diminish[ing]” of resources available to provide relief to those who actually suffer a present physical injury as a result of tortious conduct; (4) essentially unpredictable and unlimited liability for defendants; and (5) “higher prices” born by the public. Id. at 435-36, 443-45. Unsurprisingly, the Court ruled that an independent claim for future costs of medical monitoring absent present physical injury was “beyond the bounds of the ‘evolving common law’” and thus not available under the Federal Employees’ Liability Act (“FELA”). Id. at 425. In Henry, 701 N.W.2d at 703, the Michigan Supreme Court expressed similar concerns. “To recognize a medical monitoring cause of action would 25 essentially be to accord carte blanche to any moderately creative lawyer to identify an emission from any business enterprise anywhere, speculate about the adverse health consequences of such an emission, and thereby seek to impose on such business the obligation to pay the medical costs of a segment of the population that has suffered no actual medical harm.” Id.; see also Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 435 (W. Va. 1999) (Maynard, J., dissenting) (warning that “the practical effect” of creating an independent medical monitoring action “is to make almost every West Virginian a potential plaintiff in a medical monitoring cause of action”). The costs that such widespread litigation would impose on society can only be described as immense. Litigation itself is inherently expensive. Likewise, the costs of purchasing equipment, hiring medical staff, buying or leasing facilities, developing notification and monitoring protocols, providing medical advice and maintaining records for each of these individual monitoring “programs” is only more so. Cf. Buckley, 521 U.S. at 435 (“[t]he large number of those exposed and the uncertainties that may surround recovery also suggest … the problem of ‘unlimited and unpredictable liability’”). The time and energy of the judiciary itself would be drafted for decades of “equitable” supervision. It is no answer to suggest that such costs would be “absorbed” by defendants found to have engaged in tortious conduct. Businesses do not “absorb” losses— 26 they pass them along to their customers. All the costs of “medical monitoring,” including the massive transactional costs of large-scale litigation, would ultimately be borne by the individuals and other businesses who are the defendants’ customers, most of whom undoubtedly would be entirely innocent of tortious conduct. Many costs would be borne directly by consumers of the products in question, or by purchasers of the same defendants’ other products, in the form of higher prices. Costs not so easily recouped would result in lower compensation to the defendants’ employees, lower stock prices, and less investment in new ventures. Again, these costs would fall upon innocent individuals who own stock either directly or through retirement plans, or who might have been hired by emerging businesses. Buckley, 521 U.S. at 435 (recognizing that judicial endorsement of new claims inevitably will result in costs borne by all of society, including through “higher prices”); Andrew R. Klein, Rethinking Medical Monitoring, 64 Brook. L. Rev. 1, 26-27 (1998) (stating that the lack of predictable medical monitoring standards undoubtedly increases transaction and litigation costs).23 23 See Kenneth S. Abraham, Liability for Medical Monitoring & the Problem of Limits, 88 Va. L. Rev. 1975, 1984 (2002) (stating “in medical monitoring cases, only health care or relating monitoring costs will be at issue. When these costs are already placed into such broad channels of distribution as health insurance, the argument for invoking the costly machinery of the legal system in order to shift these costs to another broad channel of distribution—the price structure of a commercial enterprise or its liability insurer—is far weaker”). 27 B. Medical Monitoring Claims May Deplete Defendants’ Finite Resources To The Detriment Of Those Who Actually Become Ill. A significant problem inherent in any type of medical monitoring claim is its potential to deplete finite resources available to compensate individuals who develop actual injuries and illnesses as the result of tortious conduct. The United States Supreme Court has recognized that a “flood of less important cases” brought by presently uninjured plaintiffs for “medical monitoring” would inevitably diminish the funds available to individuals who actually develop the disease at issue at some point. By that time, many allegedly liable companies could be driven out of business by the costs of litigating claims brought by asymptomatic plaintiffs or paying classwide costs for medical monitoring. Buckley, 521 U.S. at 435-36, 442 (citing the possibility of “a ‘flood’ of less important cases potentially absorbing resources better left available to those more seriously harmed”). Likewise, in Henry, 701 N.W.2d at 694, the Michigan Supreme Court declined to allow medical monitoring liability because “[l]itigation of these preinjury claims could drain resources needed to compensate those with manifest physical injuries and a more immediate need for medical care.” The court in Hinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001), voiced similar concerns that it would be “inappropriate … to stand Alabama tort law on its head in an attempt 28 to alleviate [plaintiffs’] concerns about what might occur in the future.” Id. at 831 (emphasis in original). Asbestos litigation is a case in point. Early asbestos decisions deviated from accepted legal principles to permit recoveries that traditionally would have been barred. The ever-expanding flood of litigation turned into a “judicial disaster of major proportions.” Judicial Conference Ad Hoc Committee on Asbestos Litigation, Report of the Ad Hoc Committee at 2 (1991). “[T]he ‘asbestos litigation crisis’ would never have arisen and would not exist today” without claims brought by individuals who are uninjured. Lester Brickman, Lawyers’ Ethics & Fiduciary Obligation in the Brave New World of Aggregative Litigation, 26 Wm. & Mary Envtl. L. & Pol’y Rev. 243, 273 (2001); see Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J.L. & Pub. Pol’y 541, 567 (1992) (discussing the “considerable waste” associated with “litigation by plaintiffs who are presently unimpaired and who will never become impaired”) (emphasis in original). As a result, “[t]he resources available to persons injured by asbestos are steadily being depleted. The continuing filings of bankruptcy by asbestos defendants disclose that the process is accelerating. … The continued hemorrhaging of available funds deprives current and future victims of rightful compensation.” In re Mary Nell Collins, 233 F.3d 809, 812 (3d Cir. 2000). 29 “Almost every judge and scholar who has addressed the issue of recovery for mental distress arising from exposure to asbestos has noted the irony that the huge volume of mental distress claims can devour the assets of defendants at the expense of more seriously injured plaintiffs.” James A. Henderson, Jr. & Aaron D. Twerski, Asbestos Litigation Gone Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, & Medical Monitoring, 53 S.C. L. Rev. 815, 834 (2002)24; Mark A. Behrens & Monica G. Parham, Stewardship for the Sick: Preserving Assets for Asbestos Victims Through Inactive Docket Programs, 33 Tex. Tech. L. Rev. 1, 6, 11 (2001). Recognition of “medical monitoring” as an independent cause of action would ensure that the same perverse trend of the uninjured crowding out the injured that has plagued asbestos litigation will spread generally through mass torts. Asbestos Litigation Gone Mad, 53 S.C. L. Rev. at 844-46. C. Courts Have Been Unable To Articulate Rules For Medical Monitoring Claims That Prevent Extortionate Class Action Litigation And Avoid Potentially Unlimited Liability. Plaintiffs are inviting this Court into a jurisprudential swamp where other courts have floundered for decades. Simply put, there is no one form of action for “medical monitoring.” Rather, there are about as many variants as there are courts that purport to apply it. In re Welding Fume Products Liab. Litig., 245 F.R.D. 279, 24 Citing Buckley, 521 U.S. at 435-36; Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 814 (Cal. 1993); and Temple-Inland Forest, 993 S.W.2d at 93. 30 291 (N.D. Ohio 2007) (discussing numerous differences in medical monitoring claims in various jurisdictions). Courts that have permitted medical monitoring, either as a remedy for a traditional tort action or as an independent cause of action, have failed miserably to reach consensus over the criteria for these claims. Indeed, Plaintiffs advocate further deviation here—even criticizing decisions on which they otherwise rely. Pls. Br. 38 & n.33. A clear set of consistent elements that might rationally control the expense of open-ended medical monitoring litigation does not exist. Courts cannot even agree on the most basic issue: the number of elements to a medical monitoring claim. See, e.g., Exxon Mobil Corp. v. Albright, 71 A.3d 30, 81-82 (Md.) (four element test for determination of reasonableness and necessity of medical monitoring), on reconsideration in part, 71 A.3d 150 (2013); Potter, 863 P.2d at 824-25 (five elements); Bower, 522 S.E.2d at 432 (six elements); Redland Soccer, 696 A.2d at 145-46 (seven elements); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979 (Utah 1993) (eight elements). Widespread variation in the number of elements of medical monitoring claims is only the beginning. “Among [states] that have considered medical monitoring, there is a lack of consensus whether to recognize it as a separate cause of action or only as a remedy to an existing tort.” Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 607 (W.D. Wash. 2001). To the extent uninjured plaintiffs 31 may recover at all for medical monitoring expenses, it has mostly been as a remedy for a traditional tort, such as negligence. California, for example “d[id] not create a new tort … simply a compensable item of damage when liability is established under traditional tort theories of recovery.” Potter, 863 P.2d at 823. “[A] medical monitoring claim may perhaps more accurately be deemed a remedy rather than a distinct cause of action.” Exxon Mobil, 71 A.3d at 76 (citation and quotation marks omitted).25 Only a few jurisdictions even ambiguously might allow what 25 See also Meyer v. Fluor Corp., 220 S.W.3d 712, 717 (Mo. 2007) (“medical monitoring does not create a new tort. It is simply a compensable item of damage”); Redland Soccer, 696 A.2d at 145 (grounding medical monitoring in “negligence”); Simmons v. Pacor, Inc., 674 A.2d 232, 239 (Pa. 1996) (following “rationale and findings” of Burns); Hansen, 858 P.2d at 979 (“the plaintiff must prove … the defendant’s negligence … the breach of a duty owed to the plaintiff”); Ayers v. Township of Jackson, 525 A.2d 287, 312 (N.J. 1987) (“the cost of medical surveillance is a compensable item of damages”); Burns v. Jaquays Mining Corp., 752 P.2d 28, 33 (Ariz. App. 1987) (“cost [of medical monitoring] is a compensable item of damages”); Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 135, 477 N.Y.S.2d 242, 246 (4th Dep’t 1984) (“a claim for medical monitoring as an element of consequential damage”); Sutton, 419 F.3d at 572 (“medical monitoring is more properly considered one of a number of possible remedies to an underlying tort, rather than a separately actionable tort”) (applying Tennessee law); Duncan, 203 F.R.D. at 607 (“[m]ost of the states that have considered the issue have chosen to recognize a remedy rather than create a separate, new cause of action”); Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1523 (D. Kan. 1995) (a “‘medical monitoring’ claim does not properly state a separate claim, rather it is merely a component of plaintiff’s damages”). 32 Plaintiffs seek here—an independent claim unmoored to any now-existing tort.26 In one state, Massachusetts, resolution of this question remains unclear.27 As a means of limiting liability, some jurisdictions restrict monitoring claims to where the plaintiff can prove negligent conduct.28 Other jurisdictions allow medical monitoring to be predicated on strict liability theories.29 States also reach divergent results on the degree of exposure and increase in risk necessary for recovery of medical monitoring expenses. In West Virginia, the plaintiff need only show that “he or she has, relative to the general population, been significantly 26 See West Virginia Rezulin Litig., 585 S.E.2d at 73 (“[a] cause of action exists under West Virginia law for the recovery of medical monitoring costs”) (quoting Bower, 522 S.E.2d at 426); Petito v. A.H. Robins Co., 750 So. 2d 103, 105 (Fla. App. 1999) (“under certain prescribed circumstances, Florida does recognize a cause of action for future expenses for medical diagnosis”); Arias v. DynCorp, 928 F. Supp. 2d 10, 16 n.2 (D.D.C. 2013) (characterizing action as “a cause of action for medical monitoring”); Cook, 755 F. Supp. at 1477 (characterizing action as “a tort claim for medical monitoring”); Lamping v. American Home Products, Inc., No. DV-97-857867 2000 WL 35751402 (Mont. Dist. Feb. 2, 2000) (recognizing “an independent cause of action for medical monitoring”). 27 In Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009), the court held that the plaintiffs’ claims, which “seek not a remedy, but a court- ordered, court-supervised program of medical surveillance … stated a claim under Massachusetts law.” Id. at 898. However, the court also tied those claims to the traditional tort of negligence. “At trial the plaintiffs will have the burden of proving each element of a negligence claim.” Id. at 899. Finally, Donovan rejected the plaintiffs’ characterization of the relief as “equitable,” describing it instead as a “remedy at law.” Id. at 898. 28 Donovan, 914 N.E.2d at 902; Redland Soccer, 696 A.2d at 145; Potter, 863 P.2d at 816; Hansen, 858 P.2d at 979. 29 Meyer, 220 S.W.3d at 717; Bower, 522 S.E.2d at 433. 33 exposed” and “is not required to show that a particular disease is certain or even likely to occur as a result of exposure.” Bower, 522 S.E.2d at 432-33 (“no particular level of quantification is necessary”). But in Pennsylvania, a plaintiff must show a “significantly increased risk of contracting a serious latent disease” as a result of “exposure greater than normal background levels.” Redland Soccer, 696 A.2d at 145. A third possible standard requires the plaintiff to demonstrate “a reasonable certainty of contracting a disease in the future.” Carey v. Kerr-McGee Chem. Corp., 999 F. Supp. 1109, 1119 (N.D. Ill. 1998). States also have different criteria for the medical justification for medical monitoring. West Virginia merges subjective and objective criteria: “obviously must be some reasonable medical basis” for medical monitoring, yet medical monitoring can be “based, at least in part, on a plaintiff’s subjective desires … for information concerning the state of his or her health.” Bower, 522 S.E.2d at 433. Pennsylvania demands that any “prescribed monitoring regime [be] reasonably necessary according to contemporary scientific principles.” Redland Soccer, 696 A.2d at 146. Proof of danger to humans has been required, but elsewhere proof of danger to animals has sufficed.30 Some states limit medical monitoring to illnesses 30 Hansen, 858 P.2d at 979 (under Utah law, “the substance must be toxic to humans rather than to other forms of life”); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 779 (3d Cir. 1994) (finding an abuse of discretion not to rely on animal studies) (applying Pennsylvania law). 34 that are curable, but others do not.31 Some states limit medical monitoring claims to the environmental tort context, but others permit the same claims against consumer products.32 Defenses also vary from state to state. For example, both Pennsylvania and Utah require plaintiffs to prove exposure was “caused by defendant’s negligence,” see, supra, n.25, but their comparative negligence principles work differently.33 In Florida, compliance with governmental labeling standards creates a rebuttable presumption against liability, but no similar presumption exists in most other states, including Pennsylvania, or for that matter, New York.34 31 Hansen, 858 P.2d at 979 (requiring a monitoring regime actually to cure or limit the disease); but see Bower, 522 S.E.2d at 434 (rejecting Hansen’s requirement that monitoring must increase a plaintiff’s chances of survival). 32 Sinclair v. Merck & Co., Inc., 948 A.2d 587, 595 (N.J. 2008) (dismissing product liability claim for medical monitoring where no present physical injury was alleged); Ratliff v. Mentor Corp., 569 F. Supp.2d 926, 928-29 (W.D. Mo. 2008) (medical monitoring “carefully” limited “to include only claims resulting from exposure to toxic substances”; the law “does not support medical monitoring claims in garden variety products”); contra Donovan, 914 N.E.2d at 902; Petito, 750 So. 2d at 105. 33 Compare Utah Code Ann. § 78B-5-818(2) (barring recovery if the plaintiff's negligence exceeds that of all possible responsible other persons whether or not sued); 42 Pa. C.S.A. § 7102(a) (barring recovery only if the plaintiff’s negligence exceeds that of all “defendants against whom recovery is sought”). 34 Fla. Stat. Ann. § 768.1256(1) (“In a product liability action brought against a manufacturer or seller for harm allegedly caused by a product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold … the aspect of the product that allegedly caused the harm: (a) Complied 35 In sum, “[o]n any fair assessment of the relevant precedent, American courts have not reached consensus regarding the legitimacy of … medical monitoring claims.” Henderson & Twerski, Asbestos Litigation Gone Mad, 53 S.C. L. Rev. at 841. Nor can the Court turn to any Restatement for guidance. Reflecting the disarray of the courts, “[t]he [American Law] Institute has never taken a position on whether recovery for medical monitoring should be permitted in these circumstances.” ALI, Principles of the Law, “Aggregate Litigation” §2.04, comment b (2010). That the law of medical monitoring is a morass further counsels restraint in recognizing these Plaintiffs’ radical new independent cause of action. Lack of consensus on what “medical monitoring” is and what “medical monitoring” requires underscores the wisdom of this Court’s precedents leaving such dramatic departures from traditional law to the purview of the Legislature. III. The U.S. Supreme Court And Numerous Federal And State Courts Have Not Allowed Actions For Medical Monitoring. Because of the common law’s longstanding present physical injury requirement, as well as the public policy concerns just noted, the United States with federal or state codes, statutes, rules, regulations, or standards relevant to the event causing the death or injury”). Cf. Mohler v. Jeke, 595 A.2d 1247, 1251 (Pa. 1991) (compliance with administrative regulations only relieves the defendant of liability for negligence per se, and does not establish exercise of due care); Stone v. Sterling Drug, Inc., 111 A.D.2d 1017, 1019, 490 N.Y.S.2d 468, 470 (3d Dep’t 1985) (“although a defendant’s compliance with a statute is some evidence of due care it does not preclude a conclusion that he was negligent”) (citation and quotation marks omitted). 36 Supreme Court and numerous state and federal courts have refused to endorse claims seeking recovery for medical monitoring in the absence of present physical injury. These decisions should be followed as consistent with this Court’s jurisprudence. By contrast, even among the minority of states permitting recovery of medical monitoring costs as a remedy, most reject the extreme sort of independent equitable cause of action sought here. A. The U.S. Supreme Court Has Rejected Actions For Medical Monitoring Under Federal Law. As previously discussed, supra, pp. 24-27, in 1997, the United States Supreme Court held that a cause of action for medical monitoring without present physical injury was not available under the federal FELA statute. The Court canvassed the state-law precedents addressing claims seeking medical monitoring absent present physical injury, both as an independent cause of action and as a remedy for a pre-existing tort, and concluded that such claims were “beyond the bounds of currently evolving common law.” Buckley, 521 U.S. at 439-40. The Court reiterated its conclusion that medical monitoring was neither good policy nor good law in Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135 (2003): The Court’s opinion in Metro-North stressed that holding employers liable to workers merely exposed to asbestos would risk “unlimited and unpredictable liability” … [and] sharply distinguished exposure- only plaintiffs from “plaintiffs who suffer from a disease”. … Commentary similarly distinguishes asymptomatic asbestos plaintiffs from plaintiffs who “developed asbestosis and thus suffered real physical harm.” The categorical approach endorsed in Metro- 37 North serves to reduce the universe of potential claimants to numbers neither “unlimited” nor “unpredictable.” Relevant here, and as [defendant] recognizes, of those exposed to asbestos, only a fraction will develop asbestosis. Id. at 156-57 (citations omitted). While Buckley and Norfolk & Western both interpreted a specific statute, the federal courts have extended those holdings to other federal statutory causes of action. See June v. Union Carbide Corp., 577 F.3d 1234, 1249-51 (10th Cir. 2009) (Price-Anderson Act); In re Hanford Nuclear Reservation Litigation, 534 F.3d 986, 1009 (9th Cir. 2007) (same); Syms v. Olin Corp., 408 F.3d 95, 105 (2d Cir. 2005) (CERCLA). B. The Majority Of Other States Disallows Claims For Medical Monitoring Absent Present Physical Injury. Following the lead of the high court in Buckley and Metro-North, numerous state high courts from across the country, have rejected medical monitoring claims where the plaintiffs could not prove any present physical injury beyond “injurious exposure to a toxic substance” or an “increased risk of developing cancer.” These opinions are influenced by: (1) Buckley itself; (2) the countervailing jurisprudential and policy issues described above; and (3) the difficulties and problems that have arisen in jurisdictions where courts, through judicial decree, have allowed claims for medical monitoring absent present physical injury. Nevada. In Badillo, 16 P.3d at 440, the Nevada Supreme Court rejected class action claims seeking establishment of a court-supervised medical monitoring 38 program to detect alleged tobacco-related illnesses. The court held that altering common-law rights, creating new causes of action, and providing new remedies for wrongs “is generally a legislative, not a judicial, function,” and that it always exercises its inherent judicial powers to develop common law and equity “narrowly” and “cautiously.” Id. The court declined to create a new cause of action, where the facts were not “clear-cut” and the claim was not well “defined” in other jurisdictions. Id. (citations omitted). A cause of action for medical monitoring absent present physical injury was novel, contrary to law, and raised many complex and difficult issues of law and policy. Id. at 440-41 (noting that “lack of consensus in other jurisdictions” concerning the elements of the proposed cause of action and complex issues of legal causality and proof concerning increased risks or future harm). Alabama. In Hinton, 813 So. 2d at 828, a putative class action for medical monitoring was brought over alleged environmental pollution. The Alabama Supreme Court refused to recognize recovery for such costs without a “manifest, present injury.” Id. at 829. “To recognize medical monitoring as a distinct cause of action … would require this Court to completely rewrite [the] tort-law system, a task akin to traveling in uncharted waters, without the benefit of a seasoned guide. We are unprepared to embark upon such a voyage.” Id. at 830. Finding the discussion of legal and policy issues in Buckley persuasive, the court concluded, 39 “we find it inappropriate … to stand Alabama tort law on its head in an attempt to alleviate [plaintiffs’] concerns about what might occur in the future. … That law provides no redress for a plaintiff who has no present injury or illness.” Id. at 831- 32 (emphasis in original). Kentucky. In Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849, 851 (Ky. 2002), the plaintiff sought the creation of a court-supervised medical monitoring fund, again on behalf of a putative class, based on traditional state-law torts. The court held that the plaintiff had no cause of action, given his lack of any present physical injury. Id. The court retained the traditional present injury rule in tort law, even though some courts had begun “venturing into uncharted territory” and experimenting with claims for medical monitoring, absent present physical injury. Id. at 856-57. “In the name of sound policy,” the Kentucky court declined “to depart from well-settled principles of tort law.” Id. at 857. The court followed the Buckley Court and “a persuasive cadre of authors from academia” in determining that recovery for bare increased risk could create “significant public policy problems.” Id. “[H]aving weighed the few potential benefits against the many almost-certain problems of medical monitoring,” the court was “convinced” that there was “little reason to allow such a remedy without a showing of present physical injury.” Id. at 859. “Traditional tort law militates against recognition of 40 such claims, and we are not prepared to step into the legislative role and mutate otherwise sound legal principles.” Id. Michigan. In Henry, 701 N.W.2d at 68, another class action seeking a court supervised medical monitoring program was rejected, also for alleged environmental exposure to toxins. While “the common law is an instrument that may change as times and circumstances require,” Henry declined “plaintiffs’ invitation to alter the common law of negligence liability to encompass a cause of action for medical monitoring.” Id. “Recognition of a medical monitoring claim would involve extensive fact-finding and the weighing of numerous and conflicting policy concerns,” which was beyond the resources and the capacity of the court perform. Id. (“plaintiffs have asked this Court to effect a change in Michigan law that, in our view, ought to be made, if at all, by the Legislature”). Mississippi. In Paz, 949 So. 2d at 5, on certification from the United States Court of Appeals for the Fifth Circuit, the Mississippi Supreme Court held that recovery for medical monitoring required a present physical injury. “Recognizing a medical monitoring cause of action would be akin to recognizing a cause of action for fear of future illness. Each bases a claim for damages on the possibility of incurring an illness with no present manifest injury.” Id. at 5. The court found support in its survey of state and federal court decisions regarding medical monitoring claims. Id. at 6 nn.3-5 (collecting cases). 41 Oregon. In Lowe v. Philip Morris USA, Inc., 183 P.3d 181 (Or. 2008), the court rejected claims substantially similar to those here. Finding that “[t]his is not a case in which plaintiff has alleged that she has suffered any present physical harm as a result of defendants’ negligence,” the court held that claims for medical monitoring, at best, concerned future economic losses. Id. at 183. The law, however, established that “[o]ne ordinarily is not liable for negligently causing a stranger’s purely economic loss without injuring his person or property.” Id. at 186 (citations omitted). Equity and policy arguments—comparable to those here— “d[id] not provide a basis for overruling [the jurisdiction’s] well-established negligence requirements.” Id. at 187. Louisiana. The Louisiana experience demonstrates the wisdom of leaving recognition of medical monitoring claims to legislative action. In Bourgeois v. AP Green Industries, 716 So. 2d 355, 360-61 (La. 1998), the court took upon itself to resolve the many sensitive and complex medical and societal issues implicated by such claims. That decision, permitting recovery, stood less than a year. The Louisiana legislature overruled Bourgeois with a statute requiring proof of a present physical injury as an essential element of any monitoring claim. La. Civ. Code Ann. art. 2315 (excluding costs for medical treatment or surveillance unless directly related to a “manifest physical or mental injury or disease”). 42 New Jersey. Medical monitoring recovery is also legislatively restricted in New Jersey. After the New Jersey Supreme Court allowed recovery of medical monitoring expenses as a remedy—not as an independent action—in Ayers, 525 A.2d at 312, legislators enacted a statute mandating present physical injury as an element of all claims involving products. In Sinclair v. Merck & Co., Inc., 948 A.2d 587, 593 (N.J. 2008), the Court recognized that the statute prohibited medical monitoring claims concerning product-based exposures, absent present physical injury, thereby vindicating both the statutory text and the manifest policy judgments of the legislature.35 35 West Virginia’s experience with medical monitoring provides a cautionary tale. In Bower, 522 S.E.2d at 432-33, the state’s high court established an independent medical monitoring cause of action, as sought here, absent present physical injury. That ruling caused grave concern in West Virginia. See, e.g., Robert D. Mauk, McGraw ruling harms state’s reputation in law, medical monitoring, Charleston Gazette (WV), Mar. 1, 2003, at 5A, available at, 2003 WLNR 5449929 (“the Bower medical-monitoring ruling has cast a shadow over our state’s reputation in the legal field. It affects West Virginia jobs, taxes, health care and the public credibility of our courts.”); Editorial, Legislators need to restrict the legal industry on this one, Charleston Gazette, at 4A (Feb. 19, 2003), available at 2003 WLNR 5447407 (“People should be compensated for injuries caused by the negligence of others. But lawyers should not profit from imaginary harm”). Bower contributed to the West Virginia becoming the first statewide “Judicial Hellhole” for two years running. See Am. Tort Reform Ass’n, Bringing Justice to Judicial Hellholes 9-10, 18 (2003), available at, ; see also Group’s Unflattering Picture of State Is an Accurate Label, (Parkersburg, W. Va.) News & Sentinel (Nov. 14, 2003) (“One infamous example cited by the association is the state Supreme Court’s ‘medical monitoring’ role. … It’s no wonder the business world is afraid of West Virginia. And thus, it’s no wonder we lag behind other states in creation of new jobs.”). 43 Numerous other decisions agree with these courts’ reasoning that recovery of medical monitoring by uninjured plaintiffs raises many questions that are beyond the competence of courts to address. Alabama: Houston County Health Care Authority v. Williams, 961 So. 2d 795, 810-11 (Ala. 2006) (reaffirming Hinton, supra). Arkansas: Prempro Prods. Liab. Litig., 230 F.R.D. at 569. Connecticut: Goodall v. United Illuminating, 1998 WL 914274, at *10 (Conn. Super. Dec. 15, 1998); Bowerman v. United Illuminating, 1998 WL 910271, at *10 (Conn. Super. Dec. 15, 1998) (identical opinions). Delaware: Merganthaler v. Asbestos Corp. of America, 480 A.2d 647, 651 (Del. 1984); M.G. v. A.I. Dupont Hospital for Children, 393 Fed. App’x 884, 892-93 & n.7 (3d Cir. 2010). Georgia: Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290, 1302 (N.D. Ga. 2005), aff’d, 230 Fed. App’x 878, 883 (11th Cir. 2007). Illinois: Jensen v. Bayer AG, 862 N.E.2d 1091, 1100-01 (Ill. App. 2007); Lewis v. Lead Industries Ass’n, Inc., 793 N.E.2d 869, 877 (Ill. App. 2003); Campbell v. A.C. Equipment Services Corp., 610 N.E.2d 745, 748 (Ill. App. 1993); Guillory v. American Tobacco Co., 2001 WL 290603, at *7 (N.D. Ill. March 20, 2001). Indiana: Pisciotta v. Old National Bancorp, 499 F.3d 629, 639 & n.10 (7th Cir. 2007); Hunt v. American Wood Preservers Institute, 2002 WL 34447541, at *1 (S.D. Ind. July 31, 2002); Johnson v. Abbott Laboratories, 2004 WL 3245947, at *6 (Ind. Cir. Dec. 31, 2004). Kansas: Burton, 884 F. Supp. at 1523. Louisiana: Edwards v. State, 804 So. 2d 886, 887 (La. App. 2001). Minnesota: Thompson v. American Tobacco Co., 189 F.R.D. 544, 552 (D. Minn. 1999); Paulson v. 3M Co., 2009 WL 229667 (Minn. 44 Dist. Jan. 16, 2009); Palmer v. 3M Co., 2005 WL 5891911 (Minn. Dist. April 26, 2005). Nebraska: Trimble v. ASARCO, Inc., 232 F.3d 946, 962-63 (8th Cir. 2000),36 aff’g, 83 F. Supp. 2d 1034 (D. Neb. 1999); Schwan v. Cargill, Inc., 2007 WL 4570421, at *1-2 (D. Neb. Dec. 21, 2007); Avila v. CNH America LLC, 2007 WL 2688613, at *1 (D. Neb. Sept. 10, 2007). North Carolina: Curl v. American Multimedia, Inc., 654 S.E.2d 76, 81 (N.C. App. 2007); Carroll v. Litton Systems, Inc., 1990 WL 312969, at *51-52 (W.D.N.C. Oct. 29, 1990), adopted, 1991 WL 187277, at *2 (W.D.N.C. July 15, 1991), aff’d in part and rev’d in part on other grounds mem., 47 F.3d 1164 (4th Cir. 1995) (table). North Dakota: Mehl v. Canadian Pacific Railway Ltd., 227 F.R.D. 505, 518-19 (D.N.D. 2005). Oklahoma: McCormick v. Halliburton Co., 895 F. Supp. 2d 1152, 1155-56 (W.D. Okla. 2012); Cole v. Asarco, Inc., 256 F.R.D. 690, 695 (N.D. Okla. 2009). Rhode Island: Miranda v. DaCruz, 2009 WL 3515196 (R.I. Super. Oct. 26, 2009) (“patently unfair to saddle [d]efendants with the cost of indefinite monitoring considering [plaintiff] does not exhibit any present harm and there are numerous other superseding causes for these conditions”). South Carolina: Rosmer v. Pfizer, Inc., 2001 WL 34010613, at *5 (D.S.C. March 30, 2001). Tennessee: Bostick v. St. Jude Medical, Inc., 2004 WL 3313614, at *14 (W.D. Tenn. Aug. 17, 2004); Jones v. Brush Wellman Inc., 2000 WL 33727733, at *8 (N.D. Ohio Sept. 13, 2000) (applying Tennessee law). Texas: Norwood, 414 F. Supp. 2d at 664-68. 36 Trimble was abrogated on other grounds (federal supplemental jurisdiction) in Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005). 45 Virginia: Ball, 958 F.2d at 39; Chinese Drywall Cases, 2010 WL 7378659, at *9-10 (“creation of such a program is one for the legislature”). Virgin Islands: Purjet v. Hess Oil Virgin Islands Corp., 1986 WL 1200, at *4 (D.V.I. Jan. 8, 1986); Louis v. Caneel Bay, Inc., 2008 WL 4372941, at *5-6 (V.I. Super. July 21, 2008). Washington: Duncan v. Northwest Airlines, 203 F.R.D. 601, 607-09 (W.D. Wash. 2001). Wisconsin: Alsteen v. Wauleco, Inc., 802 N.W.2d 212, 221 (Wis. App. 2011) (citing “concerns regarding the difficulty of assessing damages, unlimited and unpredictable liability, and secondary sources of payment”), rev. denied, 808 N.W.2d 715 (Wis. 2011). IV. Plaintiffs’ Proposed Cause Of Action Would Be Inconsistent With This Court’s Precedents. Plaintiffs claim that an independent cause of action for medical monitoring absent present physical injury would be “[c]onsistent” with existing New York law. Pls. Br. 44-49. Yet they cite no decision from this Court that actually supports that contention. None. Actually, their proposed cause of action is inconsistent with this Court’s precedents holding that a plaintiff cannot maintain an action in tort: (1) without allegations and proof of present physical injury to person or property,37 or (2) based on purely economic injuries.38 Since no decision 37 See Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 576, 934 N.Y.S.2d 43, 48, 958 N.E.2d 77, 82 (2011) (“To establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant’s part to plaintiff, breach of the duty and damages.”); Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106, 463 N.Y.S.2d 398, 401, 450 N.E.2d 204, 207 (1983) (damages likewise required in a strict product liability action); Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121, 741 N.Y.S.2d 9, 12 (1st Dep’t 46 of this Court supports their claims, Plaintiffs fall back on intermediate appellate cases, starting with dicta in Askey, 102 A.D.2d at 135-36, 477 N.Y.S.2d at 246-47. See Pls. Br. 44, 46-48. Plaintiffs’ reliance on these decisions is problematic. First and foremost, the actual holding in Askey and the cases Askey cited demonstrate the inconsistency of Plaintiffs’ proposed medical monitoring action with this Court’s precedents requiring present physical injury. Second, Plaintiffs’ treatment of New York law is incomplete. They omit cases inconsistent with their position, and thus fail to acknowledge divergent judicial views. A full survey of New York decisions reinforces why Plaintiffs’ demand for an independent cause of action should be rejected. To begin, the actual holdings in Askey and the cases cited therein do not support Plaintiffs’ advocacy of an independent medical monitoring cause of action. Plaintiffs in Askey sought class action status for both “manifest … physical injuries” and “potential” injuries which allegedly “have not surfaced but which may afflict them in the future.” Askey, 102 A.D.2d at 132-33, 477 N.Y.S.2d at 2002) (“plaintiffs must plead actual injuries or damages, resulting from defendants’ conduct, as an essential element of [negligence, strict liability, breach of the implied warranty of merchantability, negligent concealment and misrepresentation, fraud, and unfair or deceptive business practices]”). 38 See Schiavone Constr. Co., 56 N.Y.2d at 667, 451 N.Y.S.2d at 720, 436 N.E.2d at 1322, revg. on dissent at 81 A.D.2d at 221, 439 N.Y.S.2d at 933; Bellevue S. Associates, 78 N.Y.2d at 293, 574 N.Y.S.2d at 169, 579 N.E.2d at 200. 47 245-46. Because—unlike this case—the named plaintiffs in Askey alleged present physical injury, those plaintiffs undeniably could maintain their individual actions under New York law. The Askey decision reviewed only “the proposed certification of two classes: one to encompass claims for ‘allegedly known injuries’, and the other for claims for ‘potential injuries which the unknown individuals may be afflicted with in the future’.” Id. at 134, 477 N.Y.S.2d at 246. Denial of class certification for both putative classes was affirmed by the Appellate Division. Id. at 135, 477 N.Y.S.2d at 246. The trial court’s denial of certification of a class lacking present physical injury recognized that “no authority” existed “to support the proposition that New York law recognizes the claim for ‘increased risk’ without the showing of an actual injury as a compensable item of damage.” Id. at 135, 477 N.Y.S.2d at 246 (citation and quotation marks omitted). The Appellate Division affirmed for a different reason, namely, that the named plaintiffs failed to develop a “factual basis” for “a genuine class.” Id. at 138, 477 N.Y.S.2d at 246, 248. The Appellate Division went on to suggest that there might be a “basis in law to sustain a claim for medical monitoring as an element of consequential damage,” under Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824 (1936). Askey, 102 A.D.2d at 135, 477 N.Y.S.2d at 246. However, the holding in Askey was solely that the action 48 could not proceed as a class action, so its gratuitous comments about medical monitoring were dicta. Furthermore, the Askey dicta were ill considered and based on a demonstrably inaccurate reading of Schmidt. The Appellate Division construed Schmidt as equating present physical injury with mere exposure to an allegedly toxic substance, “even though at the time the action is commenced no serious damage to the plaintiff has developed.” Askey, 102 A.D.2d at 136, 477 N.Y.S.2d at 246. Schmidt held no such thing. To the contrary, Schmidt was fully grounded on allegations and proof of present physical injury—“a disease of the lungs known as pneumoconiosis”—allegedly caused by the plaintiff’s exposure. Schmidt, 270 N.Y. at 297, 200 N.E. at 825. Schmidt was one of several decisions by the Court refusing to recognize a discovery rule without legislative action and reading the statute of limitations as basing accrual of an action upon exposure. Id. Schmidt nowhere recognized any cause of action without present physical injury, for “medical monitoring” or anything else. In every case when this Court followed Schmidt, plaintiffs likewise alleged present physical injury. See, e.g., Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 781, 417 N.Y.S.2d 920, 921, 391 N.E.2d 1002, 1003 (1979) (cancer); Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 215, 237 N.Y.S.2d 714, 715, 188 N.E.2d 142, 143 (1963) (“carcinoma requiring the removal of an eye[,]”). This Court never interpreted Schmidt’s accrual rule as 49 allowing any plaintiff to maintain an action prior to actual injury. The Appellate Division was wrong to suggest otherwise in its dicta in Askey.39 Schmidt’s accrual rule was sharply criticized for triggering the statute of limitations before plaintiffs could establish injury. See Schwartz, 12 N.Y.2d at 217-18, 237 N.Y.S.2d at 718, 188 N.E.2d at 145. However, this Court retained the rule, holding that the Legislature could change the result by amending the statute. Id. (noting legislative enactment of other discovery rules); see Thornton, 47 N.Y.2d at 782, 417 N.Y.S.2d at 922, 391 N.E.2d at 1003 (altering a settled common-law rule was the Legislature’s responsibility). These cases, moreover, reinforce PLAC’s prior argument, supra, pp. 8-37, that this Court customarily exercises restraint, refuses to recognize expansive causes of action and other drastic legal changes, and defers to the Legislature for significant departures from established precedents. The Legislature did act—demonstrating the prudence of this Court’s restrained course. In 1986 the Legislature responded to the Court’s invitations and enacted a discovery rule for toxic exposure. The 1986 statute (N.Y.C.P.L.R. § 214–c) specified that personal injury and property damage actions accrue in toxic 39 This Court has examined Askey in other respects and held that it inaccurately stated New York law. See Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 433, 599 N.Y.S.2d 515, 517, 615 N.E.2d 999, 1001 (1993) (disapproving Askey’s “last exposure rule” as inconsistent with established precedent). 50 exposure cases only when a “physical injury” is discovered or was reasonably discoverable. Blanco v. Am. Tel. & Tel. Co., 90 N.Y.2d 757, 766, 666 N.Y.S.2d 536, 539, 689 N.E.2d 506, 509 (1997); Matter of New York Cnty. DES Litig., 89 N.Y.2d 506, 513, 655 N.Y.S.2d 862, 866, 678 N.E.2d 474, 478 (1997). This legislative response to the Schmidt line of cases thus stands for precisely the opposite proposition cited in Askey and argued by Plaintiffs here. In N.Y.C.P.L.R. § 214-c, the Legislature explicitly endorsed the proposition that present physical injury is essential to tort litigation, specifically in the context of claims arising from exposure to allegedly hazardous substances. Under the 1986 statute, legally cognizable injury does not exist until an “appreciable injury” has “manifest[ed] itself … some time after (and in many cases significantly after) initial exposure to the product.” Blanco, 90 N.Y.2d at 771, 666 N.Y.S.2d at 542, 689 N.E.2d at 612; Matter of New York, 89 N.Y.2d at 512, 655 N.Y.S.2d at 865, 678 N.E.2d at 477 (variously describing the necessary present injury as “discernible bodily symptoms,” “manifestations of exposure,” “illness,” and “the manifestations or symptoms of the latent disease”). The other intermediate appellate and trial court decisions Plaintiffs cite (Pls. Br. 46-47) also fail to support their demand for an independent, equitable cause of action for medical monitoring. Baity v. Gen. Elec. Co., 86 A.D.3d 948, 927 N.Y.S.2d 492 (4th Dep’t 2011), and Gerardi v. Nuclear Util. Servs., Inc., 149 51 Misc. 2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. 1991), share the same deficiencies as Askey, as they rely completely on Askey’s erroneous dicta.40 Dangler v. Town of Whitestown, 241 A.D.2d 290, 293, 672 N.Y.S.2d 188, 190 (4th Dep’t 1998), a cancerphobia case,41 simply cited Askey without discussion. Plaintiffs also cite Osarczuk v. Associated Universities, Inc., 36 A.D.3d 872, 830 N.Y.S.2d 711 (2d Dep’t 2007), and Acevedo v. Consol. Edison Co., Inc., 189 A.D.2d 497, 596 N.Y.S.2d 68 (1st Dep’t 1993). Neither Osarczuk nor Acevedo held that New York allows common-law claims for recovery of medical monitoring expenses. Osarczuk construed the federal Price-Anderson Act, 42 U.S.C. § 2210. 36 A.D.3d at 874-75, 830 N.Y.S.2d at 713.42 Acevedo construed New York’s Workers’ Compensation Law. 189 A.D.2d at 502-03, 596 N.Y.S.2d at 71-72. Thus neither case supports Plaintiffs’ demand here for a radical restructuring of common-law concepts of cognizable injury. 40 Gerardi was mentioned by the U.S. Supreme Court in Buckley, where the Court considered it neither definitive nor persuasive because Gerardi was a “minority view.” Buckley, 521 U.S. at 437. 41 This Court has only permitted tort recovery for cancerphobia in cases of present physical injury. Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 462 N.Y.S.2d 421, 423, 448 N.E.2d 1332, 1334 (1983) (accompanying “radiodermatitis”); Ferrara v. Galluchio, 5 N.Y.2d 16, 19, 176 N.Y.S.2d 996, 998, 152 N.E.2d 249, 251 (1958) (accompanying “radiation burn”). 42 As discussed, supra, p. 37 , federal appellate courts have rejected recovery of medical monitoring damages under the Price-Anderson Act in the absence of present physical injury. 52 A complete review of New York precedent establishes that New York intermediate courts have reached at least three mutually inconsistent results concerning medical monitoring claims. As discussed, some follow the erroneous dicta in Askey and have generally allowed medical monitoring. See also Allen v. General Electric Co., 32 A.D.3d 1163, 1165-66, 821 N.Y.S.2d 692, 695 (4th Dep’t 2006). Another view follows existing law and has not recognized any cause of action for medical monitoring. Abusio v. Consolidated Edison Co., 238 A.D.2d 454, 455, 656 N.Y.S.2d 371, 372 (2d Dep’t 1997) (claim dismissed without any allegation of “some physical manifestation” of the disease in question). An intermediate position has also been carved out, requiring “the clinically- demonstrable presence of a toxin in the plaintiff’s body, or some other indication of a toxin-induced disease” as a prerequisite to recovery for medical monitoring. DiStefano v. Nabsico, Inc., 2 A.D.3d 484, 485, 767 N.Y.S.2d 891, 891 (2d Dep’t 2003). Thus, New York is a microcosm of the nationwide confusion already discussed—further illustrating the numerous practical and legal difficulties inherent in deciding to recognize any particular form of medical monitoring-related cause of action where present physical injury does not exist. Any fair reading of the current muddled state of New York Appellate Division precedents demonstrates the falsity of Plaintiffs’ contention that an independent cause of action for medical monitoring absent present physical injury 53 would be “[c]onsistent” with existing New York law. In reality, recognition of their proposed cause of action would be a sudden and dramatic departure from this Court’s jurisprudence and, as importantly, would be completely unsupported by any action taken by the Legislature. CONCLUSION For the foregoing reasons, this Court should answer the first certified question in the negative and reject an independent action for medical monitoring absent present physical injury. That ruling would also moot the second certified question. Respectfully submitted, Daniel K. Winters, N.Y. Bar # 2679785 REED SMITH LLP 599 Lexington Avenue 22nd Floor New York, NY 10022 212 521 5400 James M. Beck, p.h.v. app. pending REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 (215) 851-8168 Of Counsel: Hugh F. Young, Jr., Product Liability Advisory Council, Inc. 1850 Centennial Park Drive, Suite 510 Reston VA 20191 (703) 264-5300 David J. Bird, p.h.v. app. pending REED SMITH LLP 225 Fifth Ave. Pittsburgh, PA 15222 412-288-3131 54 Counsel for Amicus Curiae Product Liability Advisory Council, Inc. Date Completed: October 4, 2013 55 Attachment A 56 Corporate Members of the Product Liability Advisory Council, Inc. As Of September 25, 2013 3M Altec, Inc. Altria Client Services Inc. Anadarko Petroleum Corporation AngioDynamics, Inc. Ansell Healthcare Products LLC Astec Industries Bayer Corporation BIC Corporation Biro Manufacturing Company, Inc. BMW of North America, LLC Boehringer Ingelheim Corporation The Boeing Company Bombardier Recreational Products, Inc. Bridgestone Americas, Inc. Brown-Forman Corporation Caterpillar Inc. CC Industries, Inc. Celgene Corporation Chrysler Group LLC Cirrus Design Corporation CNH America LLC Continental Tire the Americas LLC Cooper Tire & Rubber Company Crane Co. Crown Cork & Seal Company, Inc. Crown Equipment Corporation Daimler Trucks North America LLC Deere & Company Delphi Automotive Systems Discount Tire The Dow Chemical Company E.I. duPont de Nemours and Company Eli Lilly and Company Emerson Electric Co. Engineered Controls International, LLC Exxon Mobil Corporation Ford Motor Company General Electric Company General Motors LLC Georgia-Pacific Corporation 57 GlaxoSmithKline The Goodyear Tire & Rubber Company Great Dane Limited Partnership Harley-Davidson Motor Company Honda North America, Inc. Hyundai Motor America Isuzu North America Corporation Jaguar Land Rover North America, LLC Jarden Corporation Johnson & Johnson Kawasaki Motors Corp., U.S.A. KBR, Inc. Kia Motors America, Inc. Kolcraft Enterprises, Inc. Lincoln Electric Company Lorillard Tobacco Co. Magna International Inc. Mazak Corporation Mazda Motor of America, Inc. Medtronic, Inc. Merck & Co., Inc. Meritor WABCO Michelin North America, Inc. Microsoft Corporation Mine Safety Appliances Company Mitsubishi Motors North America, Inc. Mueller Water Products Nissan North America, Inc. Novartis Pharmaceuticals Corporation Novo Nordisk, Inc. PACCAR Inc. Panasonic Corporation of North America Peabody Energy Pella Corporation Pfizer Inc. Pirelli Tire, LLC Polaris Industries, Inc. Porsche Cars North America, Inc. Purdue Pharma L.P. RJ Reynolds Tobacco Company SABMiller Plc Schindler Elevator Corporation SCM Group USA Inc. Shell Oil Company 58 The Sherwin-Williams Company Smith & Nephew, Inc. St. Jude Medical, Inc. Stanley Black & Decker, Inc. Subaru of America, Inc. Techtronic Industries North America, Inc. Teva Pharmaceuticals USA, Inc. TK Holdings Inc. Toyota Motor Sales, USA, Inc. Vermeer Manufacturing Company The Viking Corporation Volkswagen Group of America, Inc. Volvo Cars of North America, Inc. Wal-Mart Stores, Inc. Whirlpool Corporation Yamaha Motor Corporation, U.S.A. Yokohama Tire Corporation Zimmer, Inc.