12‐3403‐cv (L)
In Re: World Trade Ctr. Lower Manhattan Disaster Site Litig.
In the
United States Court of Appeals
For the Second Circuit
August Term, 2013
Nos. 12‐3403‐cv (L) 12‐3729 (Con)
IN RE: WORLD TRADE CENTER LOWER MANHATTAN
DISASTER SITE LITIGATION
DOROTA MARKUT, et al.,
Plaintiffs,
BYRON ACOSTA, et al.,
Plaintiffs‐Appellants,
v.
VERIZON NEW YORK INCORPORATED,
Defendant‐Appellee,
TULLY INDUSTRIES, INC., et al.,
Defendants,
WTC CAPTIVE INSURANCE COMPANY, INC.,
Interested‐Party,
IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.
WORBY GRONER EDELMAN & NAPOLI BERN, LLP,
Cross‐Defendant.
Appeal from the United States District Court
for the Southern District of New York.
Alvin K. Hellerstein, Judge.
ARGUED: OCTOBER 9, 2013
DECIDED: JULY 10, 2014
Before: LYNCH, CHIN, and DRONEY, Circuit Judges.
Appeal from orders of the United States District Court for the
Southern District of New York (Hellerstein, J.) dismissing claims of
211 plaintiffs for answering ʺnoneʺ to interrogatory asking them to
identify ʺdiagnosedʺ conditions, injuries, and diseases for which
they were seeking recovery and claims of 31 plaintiffs for failure to
prosecute.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
DENISE A. RUBIN (Paul J. Napoli and W. Steven
Berman, on the brief), Napoli Bern Ripka Shkolnik
LLP, New York, New York, for Plaintiffs Dorota
Markut, et al., and Plaintiffs‐Appellants Byron
Acosta, et al.
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LEE ANN STEVENSON, Kirkland & Ellis LLP,
New York, New York, (Richard E. Leff,
McGivney & Kluger, P.C., on the brief), New York,
New York, for Defendant‐Appellee Verizon New
York Incorporated.
James E. Tyrell, Patton Boggs LLP, Newark, New
Jersey, for Defendants Tully Industries Inc., et al.
Margaret H. Warner, McDermott Will & Emery
LLP, Washington, DC, for Interested‐Third‐Party
WTC Captive Insurance Company, Inc.
CHIN, Circuit Judge:
In the aftermath of the attacks on the World Trade Center
(ʺWTCʺ) on September 11, 2001, thousands of individuals
participated in rescue, recovery, and clean‐up operations at the
World Trade Center site and surrounding areas. Many sustained
injuries and brought lawsuits seeking compensation. These cases
were consolidated before a single judge, the Honorable Alvin K.
Hellerstein, in the United States District Court for the Southern
District of New York. In this case, plaintiffs‐appellants are cleaning
workers who purportedly were exposed to toxic contaminants while
working in buildings on the periphery of the World Trade Center
site following the attacks. Plaintiffs were employed by cleaning
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companies hired by defendants, owners of various buildings in
lower Manhattan that were damaged or destroyed in the attacks.
Two orders of the district court are challenged on this appeal.
First, the district court granted summary judgment dismissing the
claims of 211 plaintiffs who answered ʺnoneʺ to an interrogatory
asking plaintiffs to identify ʺdiagnosedʺ conditions, injuries, and
diseases for which they were seeking recovery. Second, the district
court dismissed the claims of another 31 plaintiffs for failure to
prosecute because they did not certify their interrogatory responses
by a court ordered deadline. We vacate and remand with respect to
the grant of summary judgment dismissing the claims of the 211
plaintiffs, and we affirm with respect to the dismissal of the claims
of the 31 plaintiffs for failure to prosecute.
STATEMENT OF THE CASE
A. The Statutory Background
In response to the terrorist attacks and their aftermath,
Congress enacted the Air Transportation Safety and System
Stabilization Act of 2001 (ʺATSSAʺ), Pub. L. No. 107‐42, 115 Stat. 230
(codified as amended at 49 U.S.C. § 40101 note). Among other
things, ATSSA established the Victimʹs Compensation Fund (the
ʺVCFʺ) to provide relief to individuals who suffered physical harm
or death as a result of the terrorist attacks. See id. §§ 401, 403. To be
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eligible for the VCF, individuals were required to waive their right
to pursue damages in court for injuries that they sustained as a
result of the terrorist attacks. See id. § 405(c)(3)(B)(i). ATSSA, as
amended, also provided for a federal cause of action for damages
arising from the terrorist attacks and mandated that the United
States District Court for the Southern District of New York have
original and exclusive jurisdiction to hear such claims. See
id. § 408(b)(3) (as amended).
The VCF was originally open to claims from December 21,
2001 through December 22, 2003. See id. § 405(a)(3); see also James
Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No.
111‐347, § 202(b)(3), 124 Stat. 3623 (2011) (the ʺZadroga Actʺ); James
Zadroga 9/11 Health and Compensation Act of 2010, 76 Fed. Reg.
54112, 54112 (Aug. 31, 2011) (codified at 28 C.F.R. § 104). Congress
passed the Zadroga Act to amend ATSSA, reopen the VCF, and
provide medical monitoring and treatment benefits to those workers
who responded to and cleaned up after the terrorist attacks. The
Zadroga Act and its implementing regulations provided, among
other things, that to be eligible for the VCF, claimants had to
withdraw any pending civil actions for damages related to WTC
work by January 2, 2012. See 28 C.F.R. § 104.61(b) (2011).
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B. The Proceedings Below
1. The Pleadings and Initial Discovery
Plaintiffsʹ claims are part of the mass tort litigation arising
from the terrorist attacks. These cases were consolidated before the
district court for pre‐trial purposes on November 1, 2002.1
In their First Amended Master Complaint (the ʺMaster
Complaintʺ), dated March 28, 2008, plaintiffs asserted claims for
negligence, wrongful death, and violations of the New York Labor
Law. They alleged that defendants failed to ʺprovide for [their]
safety, protection and well‐beingʺ by failing to adequately monitor
their working conditions and provide safety equipment to protect
them from harmful airborne contaminants. App. at 11276‐80. As a
result, plaintiffs contended that they:
sustained severe and permanent personal injur[ies]
and/or disabilit[ies] and will be permanently caused to
suffer pain, suffering, inconvenience and other effects of
such injuries which included conscious pain and
suffering and/or which may result in . . . wrongful death
. . . including the fear of same . . . . In addition,
[plaintiffs] incurred and in the future will necessarily
incur further hospital and/or medical expenses in an
1 The Court has summarized the background of these related cases in greater
detail in McNally v. Port Authority, 414 F.3d 352, 357‐63 (2d Cir. 2005), and In re
World Trade Center Disaster Site Litigation, 521 F.3d 169, 172‐75 (2d Cir. 2008).
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effort to be cured of said injuries; and . . . ha[ve]
suffered and will necessarily suffer additional loss of
time and earnings from employment.
Pl. Amend. Compl. at ¶ 142.
The district court required individual plaintiffs to complete
and submit a ʺPro‐Forma First Amended Complaint by Adoptionʺ
(the ʺCheck‐off Complaintʺ). The Check‐off Complaint included,
among other things, each plaintiffʹs personal information, the hours
and locations at which she worked, and the injuries she alleged as a
result of her work. Some plaintiffs also completed ʺcore discovery
responses,ʺ which contained, among other things, a list of injuries
and symptoms that they alleged resulted from WTC‐related work,
the contact information of the physicians or healthcare providers
who treated or diagnosed them, a list of diagnoses (if any) that they
received related to their injuries, and information as to whether a
physician or healthcare provider connected their injuries to
WTC‐related work. Some plaintiffs also submitted medical records.
The information generated from the core discovery responses and
the medical records were stored in court‐ordered databases.
On February 2, 2011 the district court stayed all proceedings,
with the exception of ʺcore discovery obligations,ʺ until July 25,
2011.
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2. The TCDI Database
On August 2, 2011, the district court held a conference to
determine how to proceed in light of the expiration of the July 25
stay. The district court and the parties acknowledged that,
throughout the litigation, medical information and discovery
responses had been gathered and stored in the court‐ordered
databases. Nevertheless, the district court discussed the need for a
neutral database (the ʺTCDI Databaseʺ),2 comprised of responses to a
set of interrogatories agreed to by the parties, to gather and house
essential information about each plaintiff. The district court
explained that the TCDI Database was necessary to determine how
many of the approximately 1,500 plaintiffs were pursuing their cases
or instead were opting out of the litigation to receive compensation
through the VCF under the Zadroga Act. Further, plaintiffs were to
certify their answers to the interrogatories, so as to provide reliable
information about their claims. Finally, the district court explained
and the parties agreed that the TCDI Database would serve as a tool
to choose the cases that would proceed as a group for more intensive
discovery. The further discovery would verify the reliability of
2 The TCDI Database was created and maintained by Technology Concepts &
Design Incorporated, a litigation support corporation.
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information provided in the initial discovery process and prepare
initial cases for trial.
The district court summarized the discovery and scheduling
issues that were raised at the August 2 conference in an order dated
August 29, 2011. The district court ordered counsel to create a set of
questions with the court‐appointed Special Masters that each
plaintiff would answer and certify. Plaintiffs were ʺrequired to
complete the questionnaires in a timely fashionʺ and ʺ[a]ny
[p]laintiff who fail[ed] to fill out his or her questionnaire in a time
period that enable[d] . . . th[e] discovery program to proceed
[would] be liable to be dismissed for failure to prosecute their case.ʺ
App. at 1746‐47. From the information generated by the
interrogatories and stored in the TCDI Database, the Special Masters
were to generate a list of cases from which counsel and the district
court would choose an initial 45 cases to proceed with further
discovery. The process was to be completed by October 11, 2011.
The TCDI Database was to be created through plaintiffsʹ
responses to 33 interrogatories, organized under nine headings: (1)
case profile data; (2) WTC work background data; (3) deceased
plaintiffs; (4) tobacco use; (5) pre‐existing disorders, diseases, and
anatomical abnormalities; (6) diagnosed conditions/ injuries and
diseases for which plaintiff seeks recovery in this litigation; (7) loss
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of earnings; (8) disability claims; and (9) workersʹ compensation
claims. Under the heading ʺDiagnosed Conditions/ Injuries and
Diseases for which P[laintiff] seeks recovery in this litigation,ʺ one
interrogatory asked ʺ[f]or which diagnosed
condition(s)/injury(s)/disease(s) does P[laintiff] seek recovery?ʺ
U.S.C.A. dkt. no. 12‐3403, doc. no. 164 at 2.
3. Enlargements of Time and the December 8, 2011 Order
Shortly after the August 29, 2011 order, plaintiffs asked the
district court to ʺrelaxʺ the requirement that their interrogatories be
sworn. Citing 28 U.S.C. § 1746 and Federal Rule of Civil Procedure
33, the district court denied plaintiffsʹ request, but granted plaintiffs
an extension until October 31, 2011 to provide their sworn answers.
The district court granted plaintiffs a second extension on November
8, 2011. In an order dated November 17, 2011, the district court
granted plaintiffs a third extension, to December 2, 2011, providing
that ʺ[n]o further enlargements will be granted.ʺ App. at 1753.
In an order dated December 8, 2011, the district court denied
plaintiffsʹ motion to further enlarge the time for 170 plaintiffs to
provide sworn or certified answers to the interrogatories.
Accordingly, the district court dismissed these cases with prejudice
for failure to prosecute. The order provided that plaintiffs who
wished to move to open the judgment dismissing their cases had to
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file motions by January 2, 2012 showing a ground provided by
Federal Rule of Civil Procedure 60(b).
This Court affirmed the December 8 order on appeal. Cortez v.
City of New York, 722 F.3d 483 (2d Cir. 2013) (per curiam).
4. Dismissal of Plaintiffsʹ Claims
In an order dated December 22, 2011, the district court
directed defendants to file a motion to dismiss 281 plaintiffsʹ claims
for which plaintiffs answered ʺnoneʺ to the diagnosis interrogatory.
The December 22 order also listed the cases that the district court
and counsel chose, based on the information in the TCDI database,
to proceed to intensive discovery and trial. The remaining cases
were stayed pending the full discovery process for these selected
cases.
On January 11, 2012, pursuant to Rule 56 and the December 22
order, defendants moved for summary judgment against 281
plaintiffs who answered ʺnoneʺ to the diagnosis interrogatory,
arguing that under New York law plaintiffs could not, in light of
their responses, maintain their causes of action. In addition,
pursuant to Rules 37 and 41, defendants moved to dismiss 132
plaintiffsʹ claims for failure to properly certify their interrogatory
responses by the December 2 deadline.
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Plaintiffs opposed the motions. As an initial matter, plaintiffs
clarified that of the 281 plaintiffs identified in defendantsʹ motion for
summary judgment, only 219 plaintiffs were pursuing their claims.
Plaintiffs argued, among other things, that defendantsʹ motion for
summary judgment against the plaintiffs who answered ʺnoneʺ
improperly relied on the TCDI Database, which was a means for
gathering and sorting through basic information about plaintiffsʹ
claims, rather than dispositive discovery. Plaintiffs submitted over
400 exhibits, consisting of plaintiffsʹ pleadings, core discovery
responses, and affidavits alleging injuries and symptoms that they
suffered because of WTC‐related work, to demonstrate that genuine
material issues of fact existed. Specifically, of the 219 plaintiffs, 203
submitted their Check‐off Complaints, 97 submitted their core
discovery responses, and 108 completed affidavits after defendantsʹ
motion for summary judgment was filed (the ʺlate affidavitsʺ).
Some 117 plaintiffs also amended their responses to the diagnosis
interrogatory on the TCDI Database to allege specific injuries,
including fear of cancer and medical monitoring. To support their
claims, plaintiffs submitted an affidavit from Shira Kramer, Ph.D.,
M.H.S., explaining that ʺWTC‐exposed populations . . . have
experienced increased risks of . . . ʹWTC cough[,]ʹ new or worsening
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upper and lower respiratory symptoms, [and] asthma,ʺ among other
things. Kramer Affidavit at ¶ 6.
In response, defendants submitted a schedule comparing the
answers of 70 plaintiffs who submitted both amended diagnosis
interrogatories and late affidavits, claiming that the injuries these
plaintiffs alleged were inconsistent and accordingly implausible.
Defendants also submitted medical records from two plaintiffs to
show that the injuries that they alleged pre‐dated the terrorist
attacks. On July 23, 2012, the district court heard oral argument on
defendantsʹ motions.
In an order dated July 25, 2012, the district court granted
defendantsʹ motion to dismiss 31 plaintiffsʹ claims for failure to
prosecute their cases for the reasons stated in the December 8 order.
The July 25 order provided that if plaintiffs wished to move to open
the judgment dismissing their cases, they could file motions by
August 24, 2012 showing a ground provided by Rule 60(b).
The district court also granted defendantsʹ motion for
summary judgment against those plaintiffs who answered ʺnoneʺ to
the diagnosis interrogatory. The district court explained that it
would not consider plaintiffsʹ affidavits that disputed their prior
sworn answers and accordingly created a material issue of fact after
defendantsʹ motion for summary judgment. Further, the district
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court found that claims for medical monitoring and fear of cancer
are not stand‐alone causes of action under New York law. The
district court ordered defendants to identify the specific plaintiffs
affected by the July 25 order.
In an order dated August 9, 2012, the district court dismissed
211 plaintiffsʹ claims identified by the defendants for the reasons set
forth in the July 25 order.
Plaintiffs appeal the July 25 and August 9 orders.
DISCUSSION
We address first the district courtʹs grant of summary
judgment against the 211 plaintiffs who answered ʺnoneʺ to the
diagnosis interrogatory and second the district courtʹs dismissal of
the 31 claims for failure to prosecute.
A. Summary Judgment
1. Applicable Law
We review the grant of summary judgment de novo,
construing the evidence in the light most favorable to the
non‐moving parties and drawing all reasonable inferences in their
favor. See Mullins v. City of New York, 653 F.3d 104, 113 (2d Cir.
2011).
Summary judgment may be granted only ʺif the pleadings,
depositions, answers to interrogatories, and admissions on file,
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together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.ʺ Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 82 (2d Cir. 2004) (internal quotation
marks omitted). If ʺthere is any evidence in the record from which a
reasonable inference could be drawn in favor of the opposing party,
summary judgment is improper.ʺ Id. at 83. In other words, for
defendants ʺto succeed on summary judgment [they] must establish
ʹthat [plaintiffs are] unable to prove at least one of the essential
elementsʹʺ of their claims. Rubens v. Mason, 527 F.3d 252, 255 (2d Cir.
2008) (quoting Crawford v. McBride, 303 A.D.2d 442, 442 (2d Depʹt
2003)).
To establish their claims, plaintiffs must show that they were
injured by defendantsʹ conduct. Specifically, to establish a prima
facie case of negligence under New York law, a plaintiff must show
ʺ(1) the existence of a duty on defendantʹs part as to plaintiff; (2) a
breach of this duty, and (3) injury to the plaintiff as a result thereof.ʹʺ
Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 428 (2d Cir. 2013)
(quoting Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333
(1981)). Codifying common law negligence, New York Labor
Law § 200 provides for a general duty to protect the health and
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safety of employees. See, e.g., Haider v. Davis, 35 A.D.3d 363, 364 (2d
Depʹt 2006).
Under New York Labor Law § 241, which applies to
construction, excavation, and demolition work, ʺcontractors and
owners and their agentsʺ are required, among other things, to
ʺprovide reasonable and adequate protection and safetyʺ to their
employees, according to such rules as the commissioner of labor
may prescribe. N.Y. Lab. L. § 241(6). A defendant is liable
under § 241(6) if ʺthe defendant violated a safety regulation that set
forth a specific standard of conduct, and . . . the violation was the
proximate cause of [plaintiffʹs] injuries.ʺ Wilson v. City of New York,
89 F.3d 32, 38 (2d Cir. 1996).
2. Application
In granting summary judgment based solely on plaintiffsʹ
response of ʺnoneʺ to the interrogatory, the district court erred.
While we appreciate that the sheer number of cases before the
district court made its task of managing this mass tort litigation
extraordinarily difficult, the district court was obliged to
individually consider each plaintiffʹs answer of ʺnoneʺ in the context
of any other evidence of injury.
The use of the word ʺdiagnosedʺ in the interrogatory created
some ambiguity. It was possible that a plaintiff manifested
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symptoms of a condition, illness, or disease that had not yet been
diagnosed when he answered the interrogatory. Indeed, claims
arising from exposure to toxic or harmful substances often present
nuanced and fact‐specific questions as to whether and when a
legally cognizable injury exists.
For example, under New York law, a cause of action accrues
in the toxic tort context when a plaintiff discovers an injury or ʺwhen
through the exercise of reasonable diligence such injury should have
been discovered by the plaintiff, whichever is earlier.ʺ N. Y. C. P. L.
R. § 214‐c (2). In In re New York County DES Litigation, 89 N.Y.2d 506,
514 (1997), the New York Court of Appeals considered whether a
plaintiffʹs action for reproductive injuries resulting from her
motherʹs exposure to diethylstilbestrol (ʺDESʺ) was time‐barred.
Finding that it was, the Court held that ʺthe time for bringing [an]
action begins to run under [C.P.L.R. § 214‐c (2)] when the injured
party discovers the primary condition on which the claim is basedʺ
rather than ʺwhen the connection between [the] symptoms and the
injuredʹs exposure to a toxic substance is recognized.ʺ Id. at 509.
Accordingly, when a legally cognizable injury accrues is not
dependent on ʺthe medical sophistication of the individual plaintiff
[or] the diagnostic acuity of his or her chosen physician.ʺ Id. at 515.
Instead, C.P.L.R. § 214‐c requires only the ʺdiscovery of the
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manifestations or symptoms of the latent disease that the harmful
substance produced.ʺ Id. at 514; see also Goffredo v. City of New York,
33 A.D.3d 346, 347 (1st Depʹt 2006) (finding petition to serve notice
on city for personal injury as a result of exposure to harmful
substance untimely based on when symptoms manifested
themselves, rather than when illness was diagnosed).
New York courts have not established a bright‐line rule for
when symptoms or manifestations of a physical condition are
sufficient to trigger CPLR § 214‐c. See DES Litigation, 89 N.Y.2d at
514 n.4 (recognizing ʺthere may be situations in which the claimant
may experience early symptoms that are too isolated or
inconsequentialʺ but declining to decide ʺprecisely where the
threshold liesʺ); cf. Sweeney v. Gen. Print., 210 A.D.2d 865, 865 (3d
Depʹt 1994) (ʺ[T]he phrase ʹdiscovery of the injuryʹ necessarily
contemplates something less than full awareness that one has been
damaged as a result of exposure to a particular toxic substance.ʺ).
Courts have instead tailored their inquiries as to when a legally
cognizable injury exists in toxic tort cases to the particular facts
before them, focusing on factors such as the extent of plaintiffʹs
exposure to a toxic substance, her medical history, the onset of her
symptoms, and the manifestations of a particular illness or disease.
See, e.g., Rosner v. Mira, Inc., 16 A.D.3d 277, 278 (1st Depʹt 2005)
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(finding plaintiffʹs onset of extreme pain in left eye a ʺdiscoverable
objective manifestationʺ of injury based on exposure to a toxic
substance) (quoting Krogmann v. Glen Falls City Sch. Dist., 231 A.D.2d
76, 78 (3d Depʹt 1997); Whitney v. Agway Inc., 238 A.D.2d 782, 784‐85
(3d Depʹt 1997) (concluding plaintiffʹs action accrued at some point
between the onset of her symptoms and her probable diagnosis,
because ʺshe was immediately aware of the existence of symptoms
that were practically identical to those classically caused by pesticide
poisoningʺ and plaintiffʹs ʺphysicians were, at the very least,
exploring the poisoning theory as a probable source of her
symptomsʺ). Contrary to defendantsʹ suggestion, therefore, a
plaintiffʹs answer of ʺnoneʺ to the interrogatory did not foreclose the
possibility that she would be able to maintain her cause of action
under New York Law.
The answer ʺnoneʺ did not necessarily preclude other
evidence of injury. Rather, the district court was required to
examine each plaintiffʹs submissions in the record to determine
whether that plaintiff raised a genuine issue of material fact as to
whether he or she had sustained a compensable injury. Some
plaintiffs submitted evidence of injury that was not, at least
arguably, inconsistent with a ʺnoneʺ answer to the interrogatory. In
our view, roughly three categories of plaintiffs existed.
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The first category includes those plaintiffs who answered
ʺnoneʺ and submitted merely Check‐off Complaints in response to
defendantsʹ motion. The grant of summary judgment against them
was proper. Not only did these plaintiffs answer ʺnoneʺ to the
interrogatory, they failed to submit any evidence of injury. Plaintiffs
were required to go beyond their pleadings to show that genuine
issues of fact existed. See Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).3
Summary judgment was improper without more analysis,
however, as to the second category of plaintiffs ‐‐ those who offered
core discovery responses before defendants moved for summary
judgment. In these responses, several plaintiffs provided evidence
of injuries of and/or symptoms resulting from air contaminants at
the WTC site. For example, one plaintiff swore that he suffered from
chronic cough, dyspnea, and an optic problem. His symptoms
3 We reject plaintiffsʹ argument that the response to the diagnosis interrogatory
could not be a basis for summary judgment because these initial interrogatories
were only preliminary. The response was still a sworn statement. Moreover,
plaintiffs had the opportunity to produce other discovery to prove injury, and
many in fact did. Finally, to the extent that plaintiffs needed additional time for
discovery, they failed to file an affidavit pursuant to Federal Rule of Civil
Procedure 56(d). See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir.
1994) (ʺ[T]he failure to file an affidavit under [this Rule] is itself sufficient
grounds to reject a claim that the opportunity for discovery was inadequate.ʺ).
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included, among other things, chest tightness, cough, eye irritation,
fatigue, and shortness of breath. He visited a hospital several times
for his injuries and alleged that a physician connected two of his
injuries to his WTC work. This response, in conjunction with
plaintiffsʹ expert report that identified the adverse effects of
exposure to air contaminants at the WTC site, created an issue of
material fact as to whether this plaintiff sustained injuries resulting
from defendantsʹ actions.
Another plaintiff represented in his core discovery response
that he suffered from respiratory problems. His symptoms were
dizziness, fatigue, and shortness of breath. The plaintiff indicated
that he visited a physician for these respiratory problems, but he did
not receive a diagnosis. His negative answer to the diagnosis
interrogatory, therefore, was not inconsistent with his core discovery
response and a material issue of fact existed as to whether he
suffered a legally cognizable injury. Hence, summary judgment was
premature as to these plaintiffs, as well as to other plaintiffs with
similar discovery responses as there was ʺevidence in the record
from which a reasonable inference could be drawnʺ that these
plaintiffs were injured by defendantsʹ conduct. Sec. Ins. Co. of
Hartford, 391 F.3d at 82‐83 (internal quotation marks omitted).
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The third category of plaintiffs was comprised of individuals
who did not submit core discovery responses, but instead offered
late affidavits and/or amended interrogatory responses. Whether
summary judgment was warranted as to their claims depends on the
individual responses. The district court was correct, as a general
matter, that plaintiffs may not create material issues of fact by
submitting affidavits that dispute their own prior testimony. See
Trans‐Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566,
572 (2d Cir. 1991). The principle does not apply, however, if the
statements ʺare not actually contradictory,ʺ or ʺthe later sworn
assertion addresses an issue that . . . was not thoroughly or clearly[ ]
explored . . . .ʺ Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir.
2000).
In light of the language of the diagnosis interrogatory, it is
unclear that the late affidavits or amended interrogatory responses
necessarily contradicted plaintiffsʹ answers to the diagnosis
interrogatory. For example, one plaintiff, in her late affidavit, swore
that she suffered from bronchitis at least two times a year, chronic
coughing, and difficulty breathing. This submission was not
necessarily inconsistent with her answer of ʺnoneʺ as to whether she
sought recovery for a diagnosed condition, disease, or injury.
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Moreover, some of the plaintiffs may have had reasonable
explanations for amending their interrogatory responses. During
oral argument on the summary judgment motion, defendants
claimed that some plaintiffs amended their answers to the diagnosis
interrogatory without explanation. Plaintiffs did, however, attempt
to provide an explanation as they contended that they did not
originally understand the diagnosis interrogatory to address any
injuries other than currently diagnosed conditions. Consistent with
that explanation, many of the amended interrogatories alleged
symptoms or manifestations of illnesses that were not currently
diagnosed. Accordingly, on remand, the district court should
consider whether plaintiffsʹ individual submissions necessarily
contradicted their interrogatory responses in light of their alleged
injuries, pleadings, previous discovery submissions, and the
language of the diagnosis interrogatory.
Of course, to the extent that plaintiffs alleged independent
causes of action for medical monitoring or fear of cancer, the district
court was correct to dismiss these claims. Medical monitoring is not
an independent cause of action under New York law. See Caronia v.
Philip Morris USA, Inc., 22 N.Y.3d 439, 452 (2013). Similarly, to
establish entitlement to damages for fear of cancer, a plaintiff must
show a ʺʹrational basisʹ for [the] fear[,] . . . i.e., . . . a ʹclinically
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IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.
demonstrable presence of toxins in the plaintiffʹs body, or some
indication of toxin‐induced disease, i.e., some physical manifestation
of toxin contamination.ʹʺ Id. at 448‐49 (quoting Abusio v. Consol.
Edison Co. of N.Y., 238 A.D.2d 454, 454‐55 (2d Depʹt. 1997) (brackets
in original omitted). In other words, a fear of cancer without some
physical manifestation of contamination is not an independent basis
for a cause of action. We note, however, that a plaintiff may obtain
the remedy of medical monitoring ʺas consequential damages, so
long as the remedy is premised on the plaintiff establishing
entitlement to damages on an already existing tort cause of action.ʺ
Id. at 452.
In sum, the fact that plaintiffs answered ʺnoneʺ to the
interrogatory was an insufficient basis, by itself, for a blanket
conclusion that all 211 plaintiffs could not establish their claims
against defendants as a matter of law. Instead, the district court,
with the help of the Special Masters, must assess plaintiffsʹ
submissions individually before deciding whether summary
judgment is appropriate. We note, of course, that after making this
individual assessment, if the district court finds that no genuine
issues of material fact exist as to whether a plaintiff sustained a
legally cognizable injury under New York law, summary judgment
would be proper.
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IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.
B. Failure to Prosecute
We turn to the district courtʹs order dismissing the claims of
the 31 plaintiffs for failure to prosecute. As plaintiffs conceded at
oral argument on appeal, their claim of error is largely foreclosed by
our decision in Cortez. Plaintiffs contend, however, that the district
court erred in refusing to deem their claims dismissed nunc pro tunc
to December 8, 2011, in accordance with the December 8 order.
Plaintiffs argue that they were unable to apply for the VCF because
their dismissals were not effective by January 2, 2012, the deadline
for withdrawing civil actions. See 28 C.F.R. § 104.61(b) (2011).
We review the ʺgrant or denial of equitable relief for abuse of
discretion.ʺ United States v. Zaleski, 686 F.3d 90, 92 (2d Cir.), cert.
denied 133 S. Ct. 554 (2012). ʺNunc pro tunc, Latin for ʹnow for then,ʹ
refers to a courtʹs inherent power to enter an order having
retroactive effect.ʺ Iouri v. Aschroft, 487 F.3d 76, 87 (2d Cir. 2006). A
district courtʹs exercise of this power is ʺa far‐reaching equitable
remedy applied in certain exceptional cases, typically aimed at
rectifying any injustice to the parties suffered by them on account of
judicial delay.ʺ Id. (internal quotation marks, citations, and
alterations omitted).
We conclude that the district court did not abuse its
discretion. These plaintiffs had notice that to remain eligible for the
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IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.
VCF they had to certify their interrogatories by the December 2
deadline to pursue their claims in court, or discontinue their civil
actions prior to the deadline set by the Zadroga Act and its
regulations. Indeed, there is nothing in the record to suggest that
these 31 plaintiffs did not have the same information and choices as
the plaintiffs affected by the December 8 order, those plaintiffs who
chose to withdraw their civil actions to enroll in the VCF, or those
plaintiffs who pursued their claims by complying with the district
courtʹs orders.
This is not an ʺexceptional case[ ]ʺ that warrants a
ʺfar‐reaching equitable remedy,ʺ and the district court did not abuse
its discretion in refusing to dismiss these claims nunc pro tunc. Id.
Accordingly, we affirm the district courtʹs dismissal of the claims of
the 31 plaintiffs for failure to prosecute.
CONCLUSION
We conclude that the district court erred in granting summary
judgment to plaintiffs based solely on their answer ʺnoneʺ to the
ʺdiagnosedʺ condition interrogatory and without considering the
record as a whole. The district court did not, however, abuse its
discretion in dismissing the claims of the 31 plaintiffs for failure to
prosecute. Accordingly, the July 25 order is AFFIRMED IN PART
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IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.
and VACATED IN PART. The August 9 order is VACATED. The
case is REMANDED for further proceedings.
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