Recent Cases in Tort Law in New York State, an Extract

•         Product Liability

•        Affidavit by Employee that Sale of Suspect Product Occurred Only Once Failed to Raise Triable Issue of Fact On Issue of Whether Defendant Was a Casual Seller.

Plaintiff in this action was seriously injured while using a radial drill press she had purchased from defendant Tuthill Energy Systems, Inc. Tuthill filed a motion for summary judgment, arguing that when it sold thee drill press, it was acting as a casual seller. As a result, defendant argued, it did not owe a duty to the plaintiff, and did not have a duty to warn and cannot be found liable under principles of strict liability. The court dismissed the plaintiff’s complaint as against Tuthill, based on the fact that Tuthill was at best a casual seller and not a company that regularly sells products of the type and kind that were sold to plaintiff.

In support of its claims that it was just a casual seller, Tuthill submitted the affidavit of its employee which stated, “To my knowledge, the 2005 sale of the Fosdick radial drill to Dresser-Reed was the only time that Tuthill sold a Fosdick radial drill.” This affidavit was submitted originally in support of Tuthill’s previous motion for summary judgment. The court denied the motion without prejudice and the right to renew, finding that discovery was not advanced enough to determine whether there may have been more information that existed outside the employee’s knowledge, and that raised a question as to what investigation was performed to determine the information contained in the employee’s affidavit.

After the close of discovery, Tuthill renewed its motion for summary judgment, and the court held that the plaintiff failed to raise a triable issue of fact with regard to whether the defendant was a casual seller, and therefore, granted the defendant’s motion.

•        Plaintiff’s Failure to Properly Identify Serial Number and Manufacture Date of Subject Product Lead to Suit Against Wrong Defendants and the Expiration of the Three-Year Statute of Limitations.

Plaintiff brought actions against several defendants as a result of an incident where plaintiff had multiple fingers sliced by a saw. Plaintiff thought that they knew the model number and approximate date of manufacture, but it turned out to be a different date, and eventually a different manufacturer. As a result, the defendants that plaintiff brought into the action were the wrong defendants, not the proper parties, and the defendant was entitled to dismissal of the action.

The manufacturer was Delta International Manufacturing Company (DIMC) an ongoing entity owned by Black & Decker Company. Plaintiff, during the course of litigation, was very lax in going forward in completing discovery, and unfortunately learned this error about the parties only at the time of the motion, which was more than three years after the plaintiff’s incident. This case points to the need to be active and aggressive in discovery in a product liability case. It is important to identify the manufacturer early, and the history of the product so as not to miss out on suing the appropriate defendants. In this case, the plaintiff’s actions were dismissed pursuant to defendant’s Rule 56 motion.

•        New Trial for Plaintiff on Issue of Damages for Pain and Suffering Following Defendant’s Rule 50 and 59 Motions.

In this products liability claim alleging a failure to warn against the American Tobacco Company and others, plaintiff received a jury verdict in the amount of $1,300,000.00 for the wrongful death of plaintiff’s decedent, $25,000.00 for pain and suffering, and $20,000.00 for plaintiff’s loss of consortium. American Tobacco Company renewed its previously filed motions for judgment as a matter of law post-trial via a Civil Procedure Rule 50 motion and also sought a new trial pursuant to Civil Procedure Rule 59.

After going through an extensive evaluation of the alleged errors of the court claimed by the defendant – the judge did not include an open and obvious instruction to the jury, an assumption of risk instruction to the jury, a knowledgeable user instruction to the jury, and other issues - the court denied the motion and confirmed the verdict of $1,300,000.00 for wrongful death and $20,000 for loss of consortium, but set aside the plaintiff’s verdict of $25,000.00 for pain and suffering and ordered a new trial to be held on the issue of pain and suffering.

•        In the Event New York Recognizes an Independent Cause of Action for Medical Monitoring Then That Claim Will be Viewed as Accruing When an Effective Monitoring Test, Such as Low Dose C-T Scanning, Becomes/Became Available

Smokers of Marlboro cigarettes for at least 20 years brought this class action against the manufacturer, asserting claims based on allegations that the cigarettes contained unnecessarily dangerous levels of carcinogens when smoked by humans. The District Court for the Eastern District of New York dismissed the plaintiffs’ claims for of negligence, strict products liability, breach of warranty, and for medical monitoring with respect to increased risk for cancer. Plaintiffs appealed.

Notably, none of the plaintiffs were diagnosed with lung cancer at the time of the motion before the court, and plaintiffs do not seek compensatory damages but brought an independent equitable claim seeking to require Philip Morris USA to fund a program of medical monitoring for longtime smokers of Marlboro cigarettes who have not been diagnosed with, but are at an increased risk for, lung cancer. The district court dismissed this claim, ruling that the plaintiffs failed to state a claim upon which relief can be granted because they could not sufficiently plead that their injuries – i.e., their increased risk of developing lung cancer from smoking the defendant’s product – were proximately caused by the defendant’s conduct.

The Second Circuit Court of Appeals held that the plaintiff’s negligence and strict liability claims against the manufacturer for injury caused by harmful exposure to toxic substances accrued, for limitations purposes, when the exposure occurred, and did not repeatedly accrue with each new inhalation. Further, the accrual of the plaintiffs’ negligence and strict liability claims against the defendant for injuries in the form of increased risk for lung cancer occurred prior to the date when the relief they sought – low dose CT scanning of the chest (LDCT) became available. Additionally, the court finds that the implied warranty of merchantability was not breached if the cigarettes were minimally safe when used in the customary, usual and reasonably foreseeable manner. Finally, the Court found that certifying questions to the New York State Court of Appeals was warranted as to availability of an independent equitable claim for medical monitoring of injuries caused by tortious exposure to toxic substances by a plaintiff who has not alleged a physical injury, and the applicable period of any such claim.

Defendant moved to dismiss the independent cause of action for failure to state a claim. Arguing that New York would not recognize such a claim. It argued that even if New York would approve of ordering medical monitoring as a remedy, it would do so only as a remedy for an existing tort. The district court rejected these contentions.

However, the court concluded that the plaintiff’s medical monitoring claim must be dismissed for failure to plead and prove that the defendant’s alleged tortious conduct is the reason why they must now secure a monitoring program that included LDCT scans.

The question whether a plaintiff may maintain an independent cause of action form medical monitoring has not been addressed by the Court of Appeals, and although the matter has been addressed by New York’s intermediate appellate courts, in the federal courts in New York, and in the highest courts of several other states, the treatments have varied.

In cases such as this one, in which state law controls and the governing principles are uncertain or ambiguous, the courts attempt to predict how the highest court of the state would resolve the uncertainty or ambiguity.

Where plaintiffs have alleged tortious exposure to toxic substances but have not alleged that they have suffered physical harm, the New York intermediate appellate courts have ruled that the cost of medical monitoring may be awarded as an item of consequential damages. Most of the federal courts sitting in New York have opined that New York would recognize an independent cause of action of medical monitoring. The highest courts of other states have divided as to whether or not the plaintiff may maintain an independent cause of action for medical monitoring.

None of the New York courts have directly addressed the question of whether the State recognizes an independent cause of action for medical monitoring, and the answer to this question, which has the capacity to resolve this litigation, is unclear. The question is material ion the instant action because the statute of limitations bars plaintiffs’ pursuit of their traditional negligence and strict products liability claims; the principle evinced in cases such as Askey, Allen, and Abusio, that the cost of medical monitoring may be recovered as an element of consequential damages, would be immaterial to claims that are time-barred.

If, however, New York recognizes an independent cause of action for medical monitoring, and if, as recognized, that claim is viewed as accruing when an effective monitoring test becomes available – and if plaintiffs’ allegations as to the availability and effectiveness of LDCT scans and as to the lack of effectiveness of prior tests are proven – the statute of limitations likely will not have run on that independent cause of action. The court also notes its uncertainty as to how New York courts would regard claim accrual in the event of further technological advances that may from time to time improve on the effectiveness of existing tests. The court frames the certified questions as it has in order to facilitate the weighing of competing policy considerations, including various gradations of health concerns and the potential for preventive or early-detection measures, in light of the scope of plaintiffs’ claims on behalf of a putative class of persons who not only have not been diagnosed with a smoking-related disease but also are not under investigation by a physician for such a suspected disease.

The court concludes that the New York Court of Appeals is better suited than this court to determine whether New York recognizes such a cause of action. Accordingly, the court certified the following questions of New York law:

•        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?

•        If New York recognizes such a cause of action for medical monitoring,

•        What are the elements of the cause of action?

•        What is the applicable statute of limitation and when does that cause of action accrue?