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Media Alerts - Caronia v. Philip Morris USA - Second Circuit
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May 1, 2013
  Caronia v. Philip Morris USA - Second Circuit
Headline: Second Circuit Certifies Question of Whether New York Recognizes Independent Equitable Cause of Action for Medical Monitoring to Court of Appeals in Lawsuit by Long-Time Smokers Against Philip Morris.

Area of Law: Equitable Claims

Issue(s) Presented: Whether current and former heavy Marlboro brand cigarette smokers, not currently diagnosed with or under medical care for any smoking-related disease, may assert an independent equitable cause of action for medical monitoring against the Philip Morris tobacco company under New York law?

Brief Summary: Plaintiffs, New York state residents who are current or former heavy smokers of Marlboro brand cigarettes, brought this action against the brand's manufacturer, Philip Morris USA, Inc., for negligence, strict liability, and breach of implied warranty, on the grounds that the company designed, manufactured and sold Marlboro cigarettes "to deliver an excessive amount of carcinogens when smoked" despite "knowing that it was feasible to lower the carcinogenic content of its cigarettes." Plaintiffs also brought an independent equitable claim to require Philip Morris to fund medical monitoring of long-time Marlboro smokers, who faced an increased risk of lung cancer but were neither diagnosed with, nor under medical care for, a smoking-related disease. The United States District Court for the Eastern District of New York dismissed the negligence, strict liability, and some of the breach of implied warranty claims as time-barred and remaining breach of warranty claims for insufficient evidence of breach. Lastly, the district court dismissed the equitable cause of action for medical monitoring, finding Plaintiffs' failed to adequately allege that their injury - an increased risk of cancer - was proximately caused by Philip Morris' actions.

The United States Court of Appeals for the Second Circuit affirmed the dismissal of the negligence and strict liability claims as time-barred, holding these actions accrued when the harmful exposure occurred - here, when Plaintiffs developed an increased risk of lung cancer - and not continually with each new inhalation, and held such accrual is not stalled until a particular remedy the injured party prefers - here, a new medical monitoring procedure - becomes available. The Court also affirmed dismissal of the breach of implied warranty claims because the cigarettes were "minimally safe when used in the customary, usual, and reasonably foreseeable manner." The Second Circuit vacated the dismissal of the equitable claim for medical monitoring, however, and certified the question of whether New York recognizes such a cause of action and, if so, what the elements of such a cause of action are, what statute of limitations applied, and when such a cause of action accrues, to the New York State Court of Appeals.

To read the full opinion, please go to:
http://www.ca2.uscourts.gov/de...dae37da35f3/3/hilite/

Panel: Circuit Judges Kearse, Lohier, and Droney

Argument (if known): 03/01/2012

Date of Issued Opinion: 05/01/2013
.
Docket Number: 11-0316-cv

Decided: Affirmed in part; Certified in part to the Court of Appeals for the State of New York.

Case Alert Author: Elyse Diamond Moskowitz

Counsel: VICTORIA E. PHILLIPS, New York, New York (Steven J. Phillips, Stanley J. Levy, Jerome H. Block, Amber R. Long, Lisa W. Davis, Levy Phillips & Konigsberg, New York, New York, on the brief), for Plaintiffs-Appellants. SHEILA BIRNBAUM, New York, New York (John H. Beisner, Jessica D. Miller, Geoffrey M. Wyatt, Skadden, Arps, Slate, Meagher & Flom Washington, D.C.; Gary R. Long, John K. Sherk, III, Shook, Hardy & Bacon, Kansas City, Missouri; Tammy B. Webb, Shook, Hardy & Bacon, San Francisco, California, on the brief), for Defendant-Appellee.

Author of Opinion: Judge Kearse

    Posted By: Elyse Diamond @ 05/01/2013 07:06 PM     2nd Circuit  

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