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Court Certifies Question on Smoker Medical Monitoring Claims

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By Robyn Hagan Cain on May 02, 2013 4:02 PM

If you spent 20 years smoking a pack of cigarettes each day, you would probably want someone to keep an eye on your lungs.

But should tobacco companies be forced to foot the bill for that type of medical monitoring when the smoker has yet to show signs of cancer? The Second Circuit Court of Appeals isn't sure, so it's asking the New York Court of Appeals to weigh in on the matter by responding to two certified questions.

The tobacco lawsuit at the root of the appellate court's certified questions is Caronia v. Philip Morris. The Caronia plaintiffs are all 50 or older, and either currently smoke Marlboro cigarettes, or stopped smoking them within one year prior of filing this lawsuit. They smoked Marlboro cigarettes for at least 20 pack-years; that's one pack of cigarettes per day for 20 years.

Though the plaintiffs aren't currently diagnosed with lung cancer -- or under investigation by a physician for suspected lung cancer -- they're concerned because lung cancer is the leading cause of cancer deaths in the U.S. and more than 80 percent of those deaths result from cigarette smoke. (Sidebar: I'm not a medical expert, but that seems like a good reason for the plaintiffs who "currently smoke Marlboro cigarettes" to stop, right?)

In 2010, a Brooklyn-based federal court dismissed the plaintiffs' claims of negligence, strict liability, and breach of implied warranty of merchantability. Under Rule 12(b)(6), the court also granted Philip Morris' motion to dismiss a free-standing claim for medical monitoring of Marlboro smokers who lack symptoms of smoking-related disease. The court reasoned that relief couldn't be granted because the plaintiffs could not sufficiently plead that their injuries -- increased risk of cancer from smoking Marlboros -- were proximately cause by Philip Morris' conduct.

This week, the Second Circuit affirmed dismissal of most of the claims, but kicked the medical monitoring claim back to the New York Court of Appeals via certified questions. Specifically, the federal appellate court has asked the state's highest court to decide:

  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 that cause of action accrue?

If the state court decides that the plaintiffs can pursue the medical monitoring claim, Philip Morris could end up paying for medical monitoring for more than 100,000 current and former New York smokers, according to the Daily Report.

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