Page 9 - Court of Appeal and Appellate Practice

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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S9

. failing to establish adequate policies and phase was completed, the Eastern District sibly.”23 The court gave weight to various is also important for many industries includ-

procedures to safeguard the conidentiality of granted Philip Morris summary judgment concerns, including those expressed by the ing medical device manufacturers, oil and
patient information or to train their employ- on the negligence and strict liability claims, U.S. Supreme Court in Metro-North Commut- gas suppliers, construction companies and
ees to properly discharge their duties under and ordered further brieing on the breach of er R. v. Buckley.24 In that case, the Supreme others that might be subject to lawsuits from
those policies and procedures.”9
implied warranty claim and on whether New Court refused to recognize a tort claim for plaintiffs pursuing remedies due to a possible
The dissent opined that a medical corpora- York courts would recognize an independent medical monitoring costs for plaintiffs who increased risk of developing an injury later
tion employer’s duty extends beyond conduct cause of action for medical monitoring.14 After were exposed to asbestos but who had not in life. The decision will deter individual or
within the scope of employment when the the additional brieing, and after plaintiffs iled manifested symptoms of a disease, observing groups of plaintiffs from “forum shopping”
employee’s behavior related to the protec- an amended complaint adding an equitable that “the potential systemic effects of creat- and congesting the court system in New York,
tion of patients’ medical records because it cause of action for medical monitoring, the ing a new, full-blown tort law cause of action and could prove inluential in other states that

is the corporation, not merely its employ- Eastern District dismissed the warranty claim cannot be ignored.”25
have not yet addressed this issue.
ees, which owes the duty of conidentiality for lack of evidence of an actual breach, and The Court of Appeals in Caronia expressed Finally, the Court of Appeals’ decision in
to the patients. Limiting a patient’s remedy dismissed the medical monitoring claim for concern over the potential for looding the Lori Hoover v. New Holland North America.28
in situations where a medical corporation failure to state a claim upon which relief could New York courts with suits from millions of informs defendant product manufacturers,
fails to protect the patient’s confidential be granted.15
plaintiffs seeking monitoring costs, and noted distributors and sellers that they will not
information, in the dissent’s view, under- On appeal, the Second Circuit upheld the that allowing plaintiffs “to recover medical be automatically absolved of liability in a
mines New York’s public policy and fails to dismissal of the claims,16 but asked the New monitoring costs without irst establishing design defect claim by establishing a prima
protect patients who must reveal conidential York Court of Appeals to determine whether physical injury would lead to the inequi- facie entitlement to summary judgment on

information to receive medical care, but who New York recognizes an independent cause table diversion of money away from those the grounds of a substantial modiication
have no control over how that information is of action for medical monitoring by certifying who have actually sustained an injury as a defense. Instead, at that point, the burden
accessed, controlled or protected. The dis- the following question:
result of the exposure”26 by compromising shifts to plaintiff to raise a triable issue of
sent posited that providing plaintiffs with a Under New York law, may a current or for- the ability of companies such as Philip Morris fact. A plaintiff can overcome a substantial
cause of action against a medical provider mer longtime heavy smoker who has not to compensate those who had actually sus- modiication defense at summary judgment if
in such a situation would incentivize medi- been diagnosed with a smoking-related tained injury. The court was also dissuaded there is a triable issue of fact as to whether the
cal corporations to implement and strictly disease, and who is not under investiga- as no framework as to how the plaintiffs’ pro- product incorporated a defectively designed
enforce privacy protections for patients. In tion by a physician for such a suspected
posed medical monitoring program would
safety feature at the time of sale. The court
response, the majority criticized the breadth reasoned that if there is suf-

of the dissent’s view, which in the majority’s icient evidence suggesting
view would impose liability upon a medical the product “was not rea-
provider even for an inadvertent disclosure One of the most highly anticipated product liability decisions sonably safe and that the
by an employee.
defective design was a
The decision raises questions about the of the year came when the Court of Appeals considered
substantial factor in caus-
privacy rights of patients who seek medical ing plaintiff’s injury,”29 that
treatment. Given the growth of electronically ‘Caronia v. Philip Morris USA’.
claim is one which should
stored medical records, patients (including properly be heard by a jury
celebrity patients and patients with exotic at trial.

medical conditions) are at risk of increased Plaintiffs Jessica Bowers
potential for “instantaneous and extensive disease, pursue an independent equitable be implemented and administered had been (Bowers), an infant, and her mother, Lori
unauthorized disclosure of conidential patient cause of action for medical monitoring proposed. As frequently expressed by the Hoover commenced this action in Niagara
information by a range of staff personnel”10 for such a disease?17
Court of Appeals, the majority opined that County Supreme Court. Bowers, aged 16, sus-
without grounds for recourse against the medi- If the Court of Appeals found in the afirma- the legislature, not the judiciary, is in a better tained traumatic amputation of her arm while
cal corporation. The management of coniden- tive, it was also asked to consider what the position to assess the policy considerations helping her stepfather Gary Hoover (Hoover)
tial patient records will be an issue to watch elements, appropriate statute of limitations, and impact of creating the proposed cause build a new backyard fence by assisting in the
closely with the recent introduction of the and accrual date for that particular cause of of action.
operation of a post-hole digger. Bowers assist-

Affordable Care Act11 and its requirement that action would be.
Chief Judge Lippman’s dissenting opinion, ed Hoover by holding the gearbox, which
medical providers completely transition to In the 4-2 majority decision, written by which was joined by Judge Jenny Rivera steadied the auger so that it dug a straight
maintaining medical records in electronic for- Judge Eugene F. Pigott, the Court of Appeals (Judge Robert S. Smith abstained), suggested hole as Hoover activated the drill from the
mat. These requirements will likely test wheth- held that New York law does not permit tort that the principle of fairness requires New tractor seat. As she did so, Bowers’ jacket
er the legal framework currently in place, and liability claims without a plaintiff proving that York to recognize the cause of action due became entangled in the rotating driveline,
as discussed in Guthrie Clinic, is suficient.
he or she actually suffers from a present inju- to the increased risk of cancer caused by dragging her into the machine and severing
One of the most highly anticipated prod- ry, stating: “Medical monitoring is an element wrongful conduct of tobacco companies. He her right arm above the elbow. The digger’s
uct liability decisions of the year came when of damages that may be recovered only after a considered the majority’s loodgates concern original design and manufacture included a
the Court of Appeals considered in Caronia physical injury has been proven.”18 The court to be unfounded, opining that careful tailor- bell-shaped plastic safety shield, bolted to

v. Philip Morris USA12 whether under New declined to allow the new independent cause ing of the elements of the cause of action the gearbox, designed to cover the gearbox
York law current or former longtime heavy of action, as the requirement that a plaintiff would provide adequate safeguards. The input shaft and protect operators from the
smokers who had not been diagnosed with sustain physical harm before being able to dissent saw value in allowing such claims driveline. Hoover was not aware when he bor-
a smoking-related disease, and who were not recover in tort is a fundamental principle of where LDCT could detect lung cancer earlier, rowed the digger from his neighbor Smith
under investigation by a physician for such a the state’s tort system. To permit plaintiffs to rather than allowing the disease to progress that Smith had removed and never replaced
suspected disease, may pursue an indepen- bring civil tort claims without an actual injury, to an advanced stage “at which point mortal- the gearbox safety shield. Smith explained
dent cause of action for medical monitoring.
the majority reasoned, would signiicantly ity rates are high and the only treatments that he had removed the plastic safety shield
Three plaintiffs, Caronia, McAuley and Feld- deviate from New York’s tort jurisprudence. available would be aimed at extending their after years of using the digger had resulted
man, each a current or former smoker of Marl- The Second Circuit afirmed the dismissal lives, not saving them.”The dissent likewise in signiicant damage to the shield.
27
boro cigarettes for 20 pack-years or more,13 of plaintiffs’ medical monitoring claims on noted that early intervention would beneit At trial, the jury found in Bowers’ favor,
none of whom had been diagnosed with April 14, 2014.
tobacco companies by reducing the overall awarding just over $8.8 million in damages.
or were under investigation for a smoking- While the majority of state and federal cost of treatment and damages awarded in Defendants Niagara Frontier Equipment
related disease, commenced a putative class courts have rejected medical monitoring wrongful death lawsuits, while beneiting the Sales (seller), Alamo/SMC Corporation
action against Marlboro cigarette manufactur- claims, some states (including Massachu- public health system by shifting the cost of (SMC) (manufacturer), and CNH America
er Philip Morris USA in the Eastern District of setts,19 West Virginia,20 Pennsylvania,21 and monitoring onto the tortfeasor.
(CNH) (distributor) appealed to the Fourth
New York. Plaintiffs alleged negligence, strict Arizona22) have dispensed with the require- Caronia does not prevent plaintiffs who Department, which afirmed, holding that the
liability and breach of the implied warranty ment that the plaintiff suffer an actual injury, have actually sustained a relevant injury from plaintiffs established a prima facie case of

of merchantability and, as none had suffered and have recognized an independent medical obtaining the remedy of medical monitoring defective design of the digger.30 Defendants
actual injury, sought provision of a court- monitoring cause of action. In Caronia, the as a consequential damage of an existing tort then appealed to the Court of Appeals, which
supervised program of medical monitoring Court of Appeals declined to do so, saying cause of action. While the decision has state- also afirmed the verdict for the plaintiffs.
through Low Dose CT Scanning (LDCT) of the “this court undoubtedly has the authority wide implications for asymptomatic plain- The main issue presented to the Court
chest, which plaintiffs claimed assists in early to recognize a new tort cause of action, but tiffs seeking medical monitoring in cigarette of Appeals was, if Smith’s failure to replace
detection of lung cancer. After the discovery
that authority must be exercised respon-
smoke, asbestos and other toxic tort cases, it
the broken shield constituted a » Page S20