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  • Writer's pictureKirk Hartley

Big Tobacco Catches a Break – NY Court of Appeals Ruling on Medical Monitoring

Big tobacco just caught a break through a narrow 4-2 ruling by the New York Court of Appeals that rejects an independent cause of action for medical monitoring when plaintiff has failed to allege any physical injury. The Caronia opinion, however, is quite narrow and so one assumes future cases will plead around the narrow confines of the ruling. The opinion also confirmed that medical monitoring damages remain available when harm has been proved. The 4-2 majority essentially accepted the "floodgates" argument advanced by big tobacco. Hat tip to Drug & Device blog for flagging the opinion soon after issuance.

Asbestos defendants may see this as a win or a loss. After all, asbestos defendants presently are under growing attacks for lung cancers, with many plainly caused by smoking. Thus, a win for plaintiffs in Caronia might have increased the litigation pressures on big tobacco.

The narrow scope of the ruling is stated in the final paragraph of the opinion:

"We conclude that the policy reasons set forth above militate against a judicially-created independent cause of action for medical monitoring. Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence. That does not prevent plaintiffs who have in fact sustained physical injury from obtaining the remedy of medical monitoring. Such a remedy has been permitted in this State’s courts as consequential damages, so long as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of action. Accordingly, we answer the first certified question in the negative, and we decline to answer the second certified question as academic."

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