Tuesday, December 17, 2013

New York high court rejects medical monitoring claim against Philip Morris USA

Philip Morris has a long history of fraudulent marketing.
Its Marlboro brand is designed to produce the highest quantity of
nicotine, the addictive substance in cigarettes
In a dramatic example of the timidity which infects our judiciary the New York Court of Appeals has rejected an appeal to follow Massachusetts and West Virginia in recognizing a medical monitoring action by long-time heavy smokers.  In Caronia v. Philip Morris USA the court’s majority trod the well worn path of recognizing the public benefits of early (pre-manifestation) lung cancer screening, but staying its hand citing the usual pandora's box, where will it ever end.  Judge Benjamin Cardozo famously overcame that shibboleth when in 1916 he ruled in MacPherson v. Buick that any consumer had the right to sue the manufacturer of a defective automobile even if he had not bought it directly from the maker.

But now only Chief Judge Jonathan Lippman and colleague Jenny Rivera were ready to take Cardozo's place. In a vigorous dissent the Chief Judge declared:
“It is difficult to envision a scenario more worthy of the exercise of this Court's equitable powers.  Indeed, it is contrary to the spirit of New York law to deny these plaintiffs an opportunity to seek relief in equity where the policy justifications for the proposed medical monitoring cause of action are so compelling."  
Lippman cited four grounds: 
* monitoring claims promote the "important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease, particularly in light of the value of an early diagnosis and treatment for many cancer patients" 

* “implementing a medical monitoring program has economic benefits not only for plaintiffs, but also for tobacco companies, since the cost of monitoring and treatment upon early detection pales in comparison to the expenses of treatment post-diagnosis, not to mention those incurred by defendants in wrongful death suits”.

* “requiring defendant to cover the costs of reasonably necessary medical monitoring would serve an important deterrence function.  As evidenced by the District Court's dismissal of plaintiffs' negligence, strict liability and breach of warranty claims, the burdens of proof for injury, causation and timeliness in tort make the threat of legal action ineffective at deterring the kind of misconduct alleged here.” 

* “it is just to shift the cost of medical monitoring onto the tortfeasor because it would be inequitable for an individual wrongfully exposed to dangerous toxins, but unable to prove that cancer or disease is likely, to have to pay the expense of medical monitoring when such intervention is clearly reasonable and necessary”.


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