Jessica M. Karmasek Dec. 18, 2013, 2:30pm

NEW YORK (Legal Newsline) -- New York's highest court ruled Tuesday that New York law does not allow for an independent cause of action for medical monitoring.

In Caronia v. Philip Morris USA Inc., the plaintiffs, all over the age of 50, are current and/or former smokers of Marlboro-brand cigarettes with histories of 20 pack-years or more.

None of the plaintiffs have been diagnosed with lung cancer, nor are they currently being monitored by a physician for suspected cancer.

However, they are seeking the establishment of a court-supervised medical monitoring program, at Philip Morris' expense, that would provide them with low-dose CT scanning of the chest.

The plaintiffs claim the scans would assist in early detection of lung cancer.

A federal district court dismissed the medical monitoring claims, along with others, holding that the plaintiffs "failed to plead that Philip Morris' allegedly tortious conduct is the reason that they must now secure a monitoring program that includes LDCT scans."

The U.S. Court of Appeals for the Second Circuit upheld the court's dismissal of the plaintiffs' negligence, strict liability and breach of implied warranty claims. However, it asked the New York Court of Appeals to decide whether the plaintiffs -- who have no sign of disease -- could pursue an independent claim against Philip Morris to establish the medical monitoring program.

Judge Eugene Pigott, writing for the majority, said policy reasons "militate against" a judicially-created independent cause of action for medical monitoring.

"Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence," he wrote in the 14-page opinion.

"That does not prevent plaintiffs who have in fact sustained physical injury from obtaining the remedy of medical monitoring. Such a remedy has been permitted in this state's courts as consequential damages, so long as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of action."

In its ruling, the majority expressed concerns about the "potential systemic effects" of creating a new, "full-blown" tort law cause of action.

"For instance, dispensing with the physical injury requirement could permit 'tens of millions' of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor's resources for those who have actually sustained damage," Pigott wrote.

"Moreover, it is speculative, at best, whether asymptomatic plaintiffs will ever contract a disease; allowing them to recover medical monitoring costs without first establishing physical injury would lead to the inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure."

Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris, applauded the court's ruling.

"We believe that the New York Court of Appeals correctly held that there is no basis under the law that supports creating a medical monitoring claim," he said in a statement Tuesday.

"In so ruling, the New York Court of Appeals has joined with many courts throughout the country in rejecting such a sweeping new cause of action."

From Legal Newsline: Reach Jessica Karmasek by email at

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