Last week, the Court of Appeals of New York (the state’s highest court) definitively ruled that under New York law, a plaintiff cannot assert an independent cause of action for medical monitoring.  Rather, medical monitoring in New York is only available as an element of consequential damages for another tort where a plaintiff has suffered physical injury or property damage.

In Caronia v. Philip Morris USA, Inc., 2013 WL 6589454 (N.Y. Dec. 17, 2013), a group of former pack-a-day smokers of Marlboro cigarettes filed a class action in the federal district court for the Eastern District of New York asserting claims of negligence, strict liability, and breach of the implied warranty of merchantability.  None of the plaintiffs were suffering from cancer or had otherwise manifested any physical injury as a result of their long-term smoking habit, but nevertheless requested equitable relief in the form of a court-supervised medical monitoring program that included Low-Dose CT chest scanning, known to assist with early detection of lung cancer, at Phillip Morris’ expense.  Plaintiffs later amended the complaint to add an independent cause of action for medical monitoring.

After discovery and briefing on the issue, the Eastern District of New York dismissed the independent medical monitoring claim, predicting that while New York law would likely recognize a cause of action for medical monitoring, plaintiffs had failed to plead Phillip Morris’ tortious conduct was the reason that the Low-Dose CT chest scanning was now necessary.  On appeal, the Second Circuit affirmed the lower court’s dismissal of the negligence, strict liability, and warranty claims, but certified the question of whether New York recognized an independent claim for medical monitoring to the Court of Appeals of New York. 

Upon review of the certification, the Court of Appeals firmly stated that no independent cause of action for medical monitoring exists in New York.  Plaintiffs must first sustain a physical injury or property damage and file a tort cause of action (e.g. negligence), and then where appropriate, seek medical monitoring as an element of their consequential damages.  In arriving at this conclusion, the Court of Appeals reviewed other New York state and federal cases where medical monitoring was awarded, all of which included allegations of personal injury, property damage, or both—allegations that were absent in the Caronia complaint.   Therefore unlike Pennsylvania, which recognizes an independent tort of medical monitoring, under Caronia it is clear that New York medical monitoring will be limited to an element of damages and must be tied to an another viable tort cause of action, such as negligence or strict liability.    

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