The U.S. Court of Appeals for the Second Circuit asked New York’s highest court to answer whether a heavy smoker who has not been diagnosed with a smoking-related disease may pursue a claim against a tobacco company for “medical monitoring.” The New York Court of Appeals said no in the December 2013 case Caronia v. Philip Morris USA, Inc., 2013 N.Y. Slip Op. 08372, 2013 WL 6589454.
Rejecting recovery for medical monitoring, the court explained, “A threat of future harm is insufficient to impose liability against a defendant in a tort context.” This means that even though a plaintiff may have increased likelihood of developing a disease, such as lung cancer, New York will not require defendants to pay for medical monitoring of that plaintiff to identify diseases that may develop in the future.
This is an important case for any company facing claims arising out of alleged exposure to toxic substances. Caronia makes it clear that, in New York, a plaintiff must establish an injury before recovering damages. It is not enough to allege an increased risk of developing a disease.
New York followed Michigan and Oregon in rejecting a cause of action for medical monitoring, but other states including, California, Massachusetts, West Virginia, Pennsylvania, and Arizona have recognized such a claim, so defendants could face medical monitoring claims in those jurisdictions.