United States

Plaintiffs, current and/or former smokers with histories of 20 pack-years or more and who aren’t yet sick, brought a class action suit against Philip Morris USA requesting a court-supervised medical monitoring program funded by the tobacco manufacturer to assist in the early detection of lung cancer. Plaintiffs’ claims based on negligence, strict liability, and breach of implied warranty were previously dismissed.  The state’s highest court held that there is no independent equitable cause of action for medical monitoring under New York state law.  The court cited the well-established rule that a plaintiff must sustain a physical injury before he or she is able to recover “reasonably anticipated” consequential damages.  The court reasoned that it is “speculative, at best, whether asymptomatic plaintiffs will ever contract a disease.”  The threat of future harm alone is insufficient to impose tort liability in this context. 

The court also cited several policy reasons behind its decision, including the potential for a flood of frivolous claims and the difficulty in implementing and administering a medical surveillance program.