NYS Court Of Appeals: Injury Required For Medical Monitoring

In a landmark decision, the NYS Court of Appeals rejected medical monitoring claims in the absence of a physical injury in Caronia v. Philip Morris, No. 227, slip op. (N.Y. Dec. 17, 2013).

By way of background, on May 1, 2013, the Second Circuit certified to the Court of Appeals the question whether, under New York law, a current or former long-term smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for a such a suspected disease, may pursue an independent equitable cause of action for medical monitoring.

In a contentious 4-3 decision, the Court of Appeals held that New York law did not permit an independent claim for medical monitoring.  In an earlier article, we discussed the Second Circuit’s decision in Caronia v. Philip Morris in detail and surveyed prior New York law involving claims for medical monitoring.

Notably, the Court of Appeals held:

We conclude that the policy reasons set forth above 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.”  Slip op. at 14.

The majority of states have rejected medical monitoring claims in the absence of a physical injury.  To rule otherwise would disregard important medical, scientific and legal distinctions between concepts of “exposure” and “injury.” 

The Court of Appeals recognized that there was “significant policy reasons that favor recognizing an independent medical monitoring cause of action.”  However, citing the U.S. Supreme Court decision in Metro-North Commuter R.R. Co. v. Buckley, 521 US 424, 443-444 (1997) (refusing to recognize a tort claim for medical monitoring costs where the plaintiff was exposed to asbestos but had not manifested symptoms of a disease), the court agreed that the “potential systemic effects of creating a new, full-blown tort law cause of action cannot be ignored.” 

The court was correctly concerned that dispensing with the physical injury requirement could permit “tens of millions” of potential plaintiffs to recover medical monitoring costs, effectively flooding the courts while concomitantly depleting the alleged purported tortfeasor’s resources for those who have actually sustained damage.  Although not discussed by the court as part of its rationale, the danger of fraudulent claims and abuse by uninjured plaintiffs cannot be overlooked as well.

Louisiana Appeals Court Rejects NORM Class Action

On January 28, 2010, the Louisiana Court of Appeal, Fourth Circuit, affirmed the New Orleans  trial court’s denial of class certification in a series of putative class actions involving alleged exposure to Normally Occurring Radioactive Material (“NORM”) on industrial property located in , Louisiana, which had been used for oilfield pipe and equipment cleaning operations for over forty years. Although class certification was rejected on multiple grounds, the decision relied in large part upon the Louisiana Supreme Court’s landmark decision in Ford v. Murphy Oil USA, Inc., 703 S.2d 542, which involved alleged exposures from hazardous materials from several distinct sources. As in Ford, the class action failed because the Harvey plaintiffs alleged toxic exposures as a result of pipe cleaning activity on the non-contiguous property of three separate and distinct landowners – Rathborne, Grefer and ITCO – over a forty-six year period, with varying amounts of pipe cleaning taking place at different times in different locations (in almost checkerboard pattern) by different companies. Ford stands for the proposition that only mass torts arising from a single common cause or disaster are appropriate for class certification.

How did pipe cleaning cause the alleged NORM exposure? Pipe cleaning involves the mechanical reaming of the inside of oilfield pipe to remove scale or crust that builds up on the interior of the tubing to the point where the scale impedes the flow of oil up the pipe. The scale, formed from natural elements, gradually clogs the pipes that are inserted deep into the ground during the course of petroleum production. At some point, it was determined that the scale inside the pipe contained material determined to be radioactive, with varying half-lives (time for half of the atoms of a radioactive substance to decay), which is called “NORM” or “TERM,” an acronym referring to Technologically Enhanced Radioactive Material. When precisely the oil industry knew or should have known that pipe cleaning could result in occupational exposure to NORM is hotly disputed. The plaintiffs allege that over the decades this pipe cleaning occurred in Harvey, “toxic dust” (NORM/TERM) was deposited in their neighborhoods and was the source of various diseases and illnesses.

What I find interesting about the Fourth Circuit’s opinion is its rejection of the trial court’s determination that the plaintiffs failed to satisfy the numerosity requirement of the Louisiana Class Action Statute, which was a primary basis for the trial court’s denial of class certification. The trial court  found that there was not sufficient numerosity because so many potential class members had already opted out, citing other lawsuits in which 3,748 individuals, a large percentage of the putative class, were involved. These so-called opt-outs were represented by several outspoken plaintiff lawyers, who did not want to see a class certified. The Fourth Circuit ruled that it was premature to opt out of a class before it was certified. A plaintiff could not opt out of a class that did not yet exist. Therefore, the Fourth Circuit found that the numerosity requirement had been met. However,  the Fourth Circuit held that sufficient commonality for class certification was not present. In addition, the Fourth Circuit held that the broad diversity of the diseases and ailments of the plaintiffs underscored the inadequacy of the class representatives representation, leading the court to conclude that there was no typicality. The Harvey TERM plaintiffs complained of diseases ranging from common cold symptoms to reproductive problems and many different forms of cancer.  The plaintiffs' strategy at both the trial court and appellate level was to argue that the court should not be required to conduct a rigorous analysis of whether the facts satisfied the class action requirements.  Plaintiffs argued that the trial court confused a motion to certify a class with a trial on the merits, essentially asserting that it had made too many "factual findings".  However, the Fourth Circuit soundly rejected this argument, citing the Louisiana Supreme Court's decision inBrooks v. Union Pacific Railroad Co., 2008-2035, *6, 2009 WL 1425972 (La. 05/22/09), which recognized the "essentially factual basis of the certification inquiry and of the district court's inherent power to manage and control pending litigation."  Brooks, 08-2035 at p. 11, 13 So 3d at 554