Over the past year, the New York Court of Appeals has handed down three decisions that provide clear and broadly applicable interpretation of both statutory rules and common law principles in tort cases. These cases deal with a medical facility’s duty to protect patients’ medical records and the employer’s vicarious liability for acts of employees performed outside the scope of their employment, whether New York recognizes medical monitoring as an independent cause of action or as an element of damages, and the liability of a product manufacturer after substantial but foreseeable modifications have been made to an allegedly defectively designed product.
In John Doe v. Guthrie Clinic,1 the court considered an employer’s vicarious responsibility for the actions of its employees in the context of a medical facility’s duty to protect patients’ medical records. Guthrie Clinic’s patient John Doe (proceeding in this action under a fictitious name to protect his privacy interests) filed a federal court action against the clinic after one of its employed nurses, who was also Doe’s girlfriend’s sister-in-law, sent text messages to Doe’s girlfriend disclosing information regarding the sexually transmitted disease for which Doe was being treated. Doe sued the clinic for common law breach of fiduciary duty to maintain the confidentiality of personal health information, breach of contract, negligent hiring, negligent infliction of emotion distress, intentional infliction of emotional distress, and breach of duty to maintain the confidentiality of personal health information under three statutes.2 The clinic moved to dismiss.
At first instance, the Western District of New York granted the clinic’s 12(b)(6) motion to dismiss all eight claims.3 Doe appealed the dismissal of five of the eight causes of action to the Second Circuit. On appeal, the Second Circuit affirmed the dismissal of four of the remaining five causes of action, finding that the nurse’s actions were not foreseeable to the clinic, nor were her actions taken within the scope of her employment.4 The court explained that in his complaint Doe had alleged that the nurse was motivated by purely personal reasons which had nothing to do with Doe’s treatment and care and, as such, those actions could not be imputed to the clinic on the basis of respondeat superior. The court concluded that the final cause of action concerning the availability of a common law cause of action directly against the clinic for breach of fiduciary duty was a question for the New York Court of Appeals, and stayed the appeal pending an answer to this certified question:
Whether, under New York law, the common law right of action for breach of the fiduciary duty of confidentiality for the unauthorized disclosure of medical information may run directly against medical corporations, even when the employee responsible for the breach is not a physician and acts outside the scope of her employment?5
The Court of Appeals, with Chief Judge Jonathan Lippman writing for the majority, answered the question in the negative, holding that “a medical corporation’s duty of safekeeping a patient’s confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment.” The court sought to maintain consistency with other cases in which it had declined to hold a medical corporation to a “heightened duty” for an employee’s conduct under the doctrine of respondeat superior. The court noted the general rule that an employer may only be held vicariously liable for the tortious acts of its employees if those acts were committed in furtherance of the employer’s business and within the scope of employment.
The court referred to its earlier decision in N.X. v. Cabrini Med. Ctr.,6 which involved a physician employee who had sexually assaulted a sedated patient. The court held there that, since the sexual assault committed by the hospital employee was outside the scope of employment, having been committed for wholly personal motives, the hospital could not be held vicariously liable. Seeking to avoid creating a “heightened duty,”7 the court rejected the Third Department’s 2000 decision in Doe v. Community Health Plan-Kaiser,8 declining to adopt a rationale which imposes absolute liability on a medical corporation for any disclosure through an employee’s dissemination of a patient’s confidential medical information.
The court stated that where a plaintiff’s case against a medical corporation employer fails because an employee was acting outside the scope of employment, such a finding does not prevent an action in tort for the negligent actions of the medical corporation’s own conduct, including “negligent hiring, supervision … failing to establish adequate policies and procedures to safeguard the confidentiality of patient information or to train their employees to properly discharge their duties under those policies and procedures.”9
The dissent opined that a medical corporation employer’s duty extends beyond conduct within the scope of employment when the employee’s behavior related to the protection of patients’ medical records because it is the corporation, not merely its employees, which owes the duty of confidentiality to the patients. Limiting a patient’s remedy in situations where a medical corporation fails to protect the patient’s confidential information, in the dissent’s view, undermines New York’s public policy and fails to protect patients who must reveal confidential information to receive medical care, but who have no control over how that information is accessed, controlled or protected. The dissent posited that providing plaintiffs with a cause of action against a medical provider in such a situation would incentivize medical corporations to implement and strictly enforce privacy protections for patients. In response, the majority criticized the breadth of the dissent’s view, which in the majority’s view would impose liability upon a medical provider even for an inadvertent disclosure by an employee.
The decision raises questions about the privacy rights of patients who seek medical treatment. Given the growth of electronically stored medical records, patients (including celebrity patients and patients with exotic medical conditions) are at risk of increased potential for “instantaneous and extensive unauthorized disclosure of confidential patient information by a range of staff personnel”10 without grounds for recourse against the medical corporation. The management of confidential patient records will be an issue to watch closely with the recent introduction of the Affordable Care Act11 and its requirement that medical providers completely transition to maintaining medical records in electronic format. These requirements will likely test whether the legal framework currently in place, and as discussed in Guthrie Clinic, is sufficient.
One of the most highly anticipated product liability decisions of the year came when the Court of Appeals considered in Caronia v. Philip Morris USA12 whether under New York law current or former longtime heavy smokers who had not been diagnosed with a smoking related disease, and who were not under investigation by a physician for such a suspected disease, may pursue an independent cause of action for medical monitoring.
Three plaintiffs, Caronia, McAuley and Feldman, each a current or former smoker of Marlboro cigarettes for 20 pack-years or more,13 none of whom had been diagnosed with or were under investigation for a smoking-related disease, commenced a putative class action against Marlboro cigarette manufacturer Philip Morris USA in the Eastern District of New York. Plaintiffs alleged negligence, strict liability and breach of the implied warranty of merchantability and, as none had suffered actual injury, sought provision of a court supervised program of medical monitoring through Low Dose CT Scanning (LDCT) of the chest, which plaintiffs claimed assists in early detection of lung cancer. After the discovery phase was completed, the Eastern District granted Philip Morris summary judgment on the negligence and strict liability claims, and ordered further briefing on the breach of implied warranty claim and on whether New York courts would recognize an independent cause of action for medical monitoring.14 After the additional briefing, and after plaintiffs filed an amended complaint adding an equitable cause of action for medical monitoring, the Eastern District dismissed the warranty claim for lack of evidence of an actual breach, and dismissed the medical monitoring claim for failure to state a claim upon which relief could be granted.15
On appeal, the Second Circuit upheld the dismissal of the claims,16 but asked the New York Court of Appeals to determine whether New York recognizes an independent cause of action for medical monitoring by certifying the following question:
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?17
If the Court of Appeals found in the affirmative, it was also asked to consider what the elements, appropriate statute of limitations, and accrual date for that particular cause of action would be.
In the 4-2 majority decision, written by Judge Eugene F. Pigott, the Court of Appeals held that New York law does not permit tort liability claims without a plaintiff proving that he or she actually suffers from a present injury, stating: “Medical monitoring is an element of damages that may be recovered only after a physical injury has been proven.”18 The court declined to allow the new independent cause of action, as the requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of the state’s tort system. To permit plaintiffs to bring civil tort claims without an actual injury, the majority reasoned, would significantly deviate from New York’s tort jurisprudence. The Second Circuit affirmed the dismissal of plaintiffs’ medical monitoring claims on April 14, 2014.
While the majority of state and federal courts have rejected medical monitoring claims, some states (including Massachusetts,19 West Virginia,20 Pennsylvania,21 and Arizona22) have dispensed with the requirement that the plaintiff suffer an actual injury, and have recognized an independent medical monitoring cause of action. In Caronia, the Court of Appeals declined to do so, saying “this court undoubtedly has the authority to recognize a new tort cause of action, but that authority must be exercised responsibly.”23 The court gave weight to various concerns, including those expressed by the U.S. Supreme Court in Metro-North Commuter R v. Buckley.24 In that case, the Supreme Court refused to recognize a tort claim for medical monitoring costs for plaintiffs who were exposed to asbestos but who had not manifested symptoms of a disease, observing that “the potential systemic effects of creating a new, full-blown tort law cause of action cannot be ignored.”25
The Court of Appeals in Caronia expressed concern over the potential for flooding the New York courts with suits from millions of plaintiffs seeking monitoring costs, and noted that allowing plaintiffs “to recover medical monitoring costs without first establishing physical injury would lead to the inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure”26 by compromising the ability of companies such as Philip Morris to compensate those who had actually sustained injury. The court was also dissuaded as no framework as to how the plaintiffs’ proposed medical monitoring program would be implemented and administered had been proposed. As frequently expressed by the Court of Appeals, the majority opined that the legislature, not the judiciary, is in a better position to assess the policy considerations and impact of creating the proposed cause of action.
Chief Judge Lippman’s dissenting opinion, which was joined by Judge Jenny Rivera (Judge Robert S. Smith abstained), suggested that the principle of fairness requires New York to recognize the cause of action due to the increased risk of cancer caused by wrongful conduct of tobacco companies. He considered the majority’s floodgates concern to be unfounded, opining that careful tailoring of the elements of the cause of action would provide adequate safeguards. The dissent saw value in allowing such claims where LDCT could detect lung cancer earlier, rather than allowing the disease to progress to an advanced stage “at which point mortality rates are high and the only treatments available would be aimed at extending their lives, not saving them.”27 The dissent likewise noted that early intervention would benefit tobacco companies by reducing the overall cost of treatment and damages awarded in wrongful death lawsuits, while benefiting the public health system by shifting the cost of monitoring onto the tortfeasor.
Caronia does not prevent plaintiffs who have actually sustained a relevant injury from obtaining the remedy of medical monitoring as a consequential damage of an existing tort cause of action. While the decision has state-wide implications for asymptomatic plaintiffs seeking medical monitoring in cigarette smoke, asbestos and other toxic tort cases, it is also important for many industries including medical device manufacturers, oil and gas suppliers, construction companies and others that might be subject to lawsuits from plaintiffs pursuing remedies due to a possible increased risk of developing an injury later in life. The decision will deter individual or groups of plaintiffs from “forum shopping” and congesting the court system in New York, and could prove influential in other states that have not yet addressed this issue.
Finally, the Court of Appeals’ decision in Lori Hoover v. New Holland North America.28 informs defendant product manufacturers, distributors and sellers that they will not be automatically absolved of liability in a design defect claim by establishing a prima facie entitlement to summary judgment on the grounds of a substantial modification defense. Instead, at that point, the burden shifts to plaintiff to raise a triable issue of fact. A plaintiff can overcome a substantial modification defense at summary judgment if there is a triable issue of fact as to whether the product incorporated a defectively designed safety feature at the time of sale. The court reasoned that if there is sufficient evidence suggesting the product “was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury,”29 that claim is one which should properly be heard by a jury at trial.
Plaintiffs Jessica Bowers (Bowers), an infant, and her mother, Lori Hoover commenced this action in Niagara County Supreme Court. Bowers, aged 16, sustained traumatic amputation of her arm while helping her stepfather Gary Hoover (Hoover) build a new backyard fence by assisting in the operation of a post-hole digger. Bowers assisted Hoover by holding the gearbox, which steadied the auger so that it dug a straight hole as Hoover activated the drill from the tractor seat. As she did so, Bowers’ jacket became entangled in the rotating driveline, dragging her into the machine and severing her right arm above the elbow. The digger’s original design and manufacture included a bell-shaped plastic safety shield, bolted to the gearbox, designed to cover the gearbox input shaft and protect operators from the driveline. Hoover was not aware when he borrowed the digger from his neighbor Smith that Smith had removed and never replaced the gearbox safety shield. Smith explained that he had removed the plastic safety shield after years of using the digger had resulted in significant damage to the shield.
At trial, the jury found in Bowers’ favor, awarding just over $8.8 million in damages. Defendants Niagara Frontier Equipment Sales (seller), Alamo/SMC Corporation (SMC) (manufacturer), and CNH America (CNH) (distributor) appealed to the Fourth Department, which affirmed, holding that the plaintiffs established a prima facie case of defective design of the digger.30 Defendants then appealed to the Court of Appeals, which also affirmed the verdict for the plaintiffs.
The main issue presented to the Court of Appeals was, if Smith’s failure to replace the broken shield constituted a substantial modification, were defendants entitled to summary judgment dismissing plaintiffs’ design defect claims, given the established precedent articulated in Robinson v. Reed-Prentice Division of Package Machinery Company that “a manufacturer of a product may not be cast in damages, either on a strict products liability or negligence cause of action, where, after the product leaves the possession and control of the manufacturer, there is a subsequent modification which substantially alters the product and is the proximate cause of plaintiff’s injuries.”31
Defendants argued the Robinson substantial modification defense applied, which automatically mandated the grant of summary judgment in its favor. Bowers asserted Robinson did not apply because, according to Smith’s testimony, he removed a broken plastic shield that had been destroyed from normal use of the digger, rather than a functioning safety device that could have protected Bowers from injury, and that because the defect existed when the product left the place of manufacture, the modification was foreseeable. Bowers further argued that the expert testimony raised questions of fact concerning whether Smith’s conduct was foreseeable and whether the shield was defectively designed, which should be sufficient to defeat summary judgment and proceed to trial. All parties agreed Bowers would not have been injured if an intact shield had been in place on the date of the accident.
The court affirmed the verdict for Hoover, ruling that “defendants did not demonstrate their entitlement to summary judgment based on Smith’s failure to replace the broken safety shield.”32 In her majority opinion, Judge Sheila Abdus-Salaam stated that Hoover’s expert and fact evidence, and particularly the expert testimony, raised a triable question as to whether Smith’s failure to replace the shield alone caused plaintiffs injuries, or whether his failure pointed to a failure on defendants’ part in selling and distributing the digger with a defectively designed shield.
The court explained that its reasoning in Hoover was consistent with its reasoning in Robinson, quoting from its conclusion in Robinson, that “where a third party makes post-sale modifications that destroy the functional utility of the product’s safety feature, the manufacturer will be insulated from liability absent a showing that ‘there was some defect in the design of the safety [feature] at the time’ the product left the manufacturer’s hands.”33 In Robinson, as compared to Hoover, the plaintiff did not assert there was a design defect at the time the product left the manufacturer’s control.
In holding that Smith did not modify the digger so substantially as to warrant absolving the seller and distributor of the machine’s design flaws, the court reasoned that “[a]lthough owners are obligated to keep their products in good repair, they should not be required to continually replace defective safety components even if, as here, the components could be replaced easily and cheaply.”34 The court stated its intention was not to create a manufacturing environment where no safety device is reasonably safe unless it is designed to last the lifetime of the product on which it is installed but that “the manufacturer must still ‘use reasonable care’ in designing the product that is reasonably safe for all of its intended uses and foreseeable misuses.”35 Importantly, as the case was brought to the court in the context of a ruling on a motion for summary judgment, and the court underscored that defective design is an issue for the jury to decide, the court ruled that plaintiffs’ proof overcame defendants’ prima facie entitlement for summary judgment based on the substantial modification defense, which allowed their design defect claims and defendants’ substantial modification defense to be brought before the jury at trial.
Judge Smith wrote a vigorous dissent, stating that there was no more obvious a time to apply the Robinson rule than here, and that the majority failed to properly do so. He disagreed with the way in which the majority distinguished Hoover from Robinson, opining that the post-hole digger in this case was safe at the time of sale because, while the safety shield remained in place, it could not have caused Bowers’ accident, and the safety shield would have remained in place if Smith had not removed, discarded, and failed to replace it.
According to the dissent, Smith was the sole tortfeasor. Judge Smith further noted that, if the defendant designer and Smith had equally deep pockets, there would be no hesitation that Smith, not the designer, should compensate Bowers for her injuries. Instead, he observed, “pockets are not equally deep, and it should surprise no one that a jury assigned two-thirds of the fault to the companies that designed, manufactured and sold the machine-firms that could be liable only for the alleged design defects-and 30 percent to the farmer, Peter Smith. This kind of soak-the-rich fact-finding is commonplace in American tort law.”36 The dissent stated that the point of Robinson was to make it clear that “a manufacturer’s duty is to use reasonable care to design a product that is safe at the time it leaves the manufacturer’s hands. A manufacturer is not liable for dangers created by substantial alterations to the product thereafter.”37
1. 22 N.Y.3d 480, 5 N.E.3d 578, 982 N.Y.S.2d 431.
2. Civil Practice Law §4504, Public Health Law §4410, and Public Health Law §2803-c.
5. John Doe, 22 N.Y.3d at 482-83.
7. John Doe, 22 N.Y.3d at 484.
8. 268 A.D.2d 183 (3d Dep’t 2000).
9. John Doe, 22 N.Y.3d at 485.
10. Id. at 486.
11. The Patient Protection and Affordable Care Act, Public Law No. 111-148, 124 Stat. 119 (2010).
12. 22 N.Y.3d 439, 5 N.E.3d 11, 982 N.Y.S.2d 40, Prod. Liab. Rep. (CCH) P 19,295.
13. A “pack-year” is the equivalent of smoking one pack of cigarettes a day for a year.
14. Caronia v. Philip Morris USA, No. 06-cv-224, 2010 WL 5205583 (E.D.N.Y. Feb. 11, 2010).
15. Caronia v. Philip Morris USA, No. 06-cv-224, 2011 WL 338425, at *3 (E.D.N.Y. Jan. 13, 2011).
16. Caronia v. Philip Morris USA, 715 F.3d 417 (2d Cir. 2013).
17. Caronia, 22 N.Y.3d at 446.
18. Id. at 448.
19. See Donovan v. Philip Morris USA, 455 Mass. 215, 225-27, 914 N.E.2d 891, 901-03 (2009) (concluding that the cause of action is in tort, not equity)
20. See Bower v. Westinghouse Elec. , 206 W. Va. 133, 140-42, 522 S.E.2d 424, 431-33 (1999) (holding that a plaintiff who does not allege a present physical injury may recover future medical monitoring costs)
21. See Redland Soccer Club v. Department of the Armv and Dept. of Defense of the U.S., 548 Pa. 178, 195-96, 696 A.2d 137, 145-46 (1997) (stating that the injury in a medical monitoring claim is an economic one)
23. Caronia, 22 N.Y.3d at 450.
24. 521 U.S. 424 (1997).
25. Id. at 443-44.
26. Caronia, 22 N.Y.3d at 451.
27. Id. at 454.
28. 23 N.Y.3d 41, 11 N.E.3d 693, 988 N.Y.S.2d 543, Prod. Liab. Rep. (CCH) P 19,372.
29. Hoover, 23 N.Y.3d at 59 (citing Voss v. Black & Decker Mfg., 59 N.Y.2d 106, 106-07 (1983)).
30. 100 A.D.3d 1495, 954 N.Y.S.2d 345 (2012).
32. Hoover, 23 N.Y.3d at 59.
33. Id. at 56-57.
34. Id. at 60.
35. Id. at 61.
36. Id. at 62.
37. Id. at 64.
Reprinted with permission from the August 25, 2014 edition of the New York Law Journal© 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.