Giordano v. Market America, Inc.

Read, J. (dissenting).

The majority opines that “effects [of an exposure to substances] concealed for a few hours may be ‘latent’ ” for purposes of CPLR 214-c because “even a brief period of latency can be important when the problem is one of determining an injury’s cause” (majority op at 598, 599). In effect, the majority defines effects as “latent” so long as symptoms do not appear “as soon as [someone’s] skin touches a suspected toxin” or “at once upon swallowing a pill” (id. at 599). And whatever “as soon as” and “at once” may mean, it would seem to be something less than the 24 to 48 hours referred to in the second certified question. This approach finds no support in the statutory text or legislative history, which uniformly demonstrate that section 214-c was intended to relieve the plight of plaintiffs who became sick long after their initial exposure to a toxic substance, which is when their causes of action would otherwise accrue.

I

A latent disease is generally understood to be an illness that does not manifest clinically diagnosable symptoms until years after initial exposure to the disease-causing agent (see e.g. David Schottenfeld and Joanna F. Haas, Carcinogens in the Workplace, in Cancer Causing Chemicals, at 23 [N. Irving Sax ed 1981]). And as we have recounted numerous times, the Legislature enacted CPLR 214-c to “overcome the effect of a line of Court of Appeals decisions,” beginning with Schmidt v Merchants Despatch Transp. Co. (270 NY 287 [1936]), which held that the claims of plaintiffs suffering from latent diseases “accrue[d] upon ‘impact’ or exposure even though the resulting illness [might not have been] manifested for a long time thereafter” (Matter of New York County DES Litig., 89 NY2d 506, 513

*603[1997] [emphasis added]; see also Snyder v Town Insulation, 81 NY2d 429, 433 [1993] [noting that Schmidt and its progeny addressed the “question of how accrual should be determined when an injury was latent and went undiscovered until long after exposure” (emphasis added)]; Consorti v Owens-Coming Fiberglas Corp., 86 NY2d 449, 454 [1995] [reviewing history of Court’s adherence to “the Schmidt rule fixing the occurrence of tortious injury as the date when the toxic substance invades or is introduced into the body” (emphasis added)]). As a result of the Schmidt rule, the three-year statute of limitations in CPLR 214 (5) lapsed before these plaintiffs even became aware they were sick.

To remedy this injustice, the Legislature adopted CPLR 214-c, which replaced the Schmidt rule in such cases with a rule of accrual keyed to “the discovery of the manifestations or symptoms of the latent disease that the harmful substance produced” (Matter of New York County DES Litig., 89 NY2d at 514). Section 214-c, adopted as a part of a larger tort reform package (L 1986, ch 682), reflected numerous compromises. In particular, the bills passed by the Assembly in the run-up to the Legislature’s adoption of CPLR 214-c invariably provided for accrual not only upon discovery of the injury, but also upon discovery of the injury’s cause. For example, in 1984 the Assembly passed Assembly Bill A3547-A, which called for commencement of an action for personal injuries attributable to the latent effects of exposure to a substance “within two years from the date of discovery of the illness or injury, or the date of death, or the discovery of the cause of such injury, illness, or death, whichever is later” (emphases added). By contrast, the Senate majority’s versions of a time-of-discovery rule did not require discovery of causation before the statute of limitations would begin to run (see generally Steven L. White, Note, Toward a Time-of Discovery Rule for the Statute of Limitations in Latent Injury Cases in New York State, 13 Fordham Urb L J 113, 154-160 [1984-1985]).

The Legislature ultimately compromised on this issue and adopted related time-of-discovery provisions for actions brought by plaintiffs to recover for latent injuries, CPLR 214-c (2) and (4). CPLR 214-c (2) enacts a three-year statute of limitations commencing upon a plaintiffs discovery (actual or constructive) of latent injuries from exposure to a substance. This provision assumes that the plaintiff knows the cause of the injuries at the time they are discovered—i.e., become manifest (see generally *604Matter of New York County DES Litig., 89 NY2d at 513 [“That CPLR 214-c (2)’s reference to ‘discovery of the injury’ was intended to mean discovery of the condition on which the claim was based and nothing more is . . . apparent from the legislative history of the provision”]).

Section 214-c (4), which “has to be read in conjunction with subdivision 2” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-c:4, at 634 [1990 ed]; see also New York Adopts a “Discovery” Rule for Exposure Cases—And Even Offers a Short Time in Which to Revive Expired Claims, Siegel, NY St L Dig, No. 321, at 1 [Sept. 1986]), specifies that if the cause of the injury is discovered less than five years after the injury is suffered, the plaintiff may commence an action within one year after identifying the cause. In order to take advantage of section 214-c (4), however, the plaintiff must show that there was insufficient medical or scientific information available to make out the injury’s cause within the three-year period otherwise prescribed in CPLR 214-c (2) (see id. [commenting that “(t)he issues of causation and knowledge on which this alternative time measure depends will often generate heavy fact disputes . . . likely to be intertwined with the merits”]).

The majority acknowledges that “[t]here is no doubt that the problem of injuries that go undiscovered for years was the Legislature’s primary concern,” but then adds that this was not the Legislature’s

“sole concern, for if it was there was no need to enact subdivision (4) of CPLR 214-c at all. That subdivision benefits only those plaintiffs . . . who, having already discovered they were injured, have not discovered ‘the cause of the injury’ A few hours of latency might well cause a plaintiff to be in such a predicament” (majority op at 599-600).

As Judge McLaughlin (coincidentally a member of the Second Circuit panel in this case) observed, “[fit need not be said that [CPLR 214-c (4)] is a complicated statute,” which “reeks of the midnight oil of political compromise. And the draftsmanship cannot be described as commendable” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-c:4, at 635 [1990 ed]). There is no suggestion in the statutory text or the legislative history or the contemporary commentary, however, that the Legislature adopted section 214-c (4) *605to address any effects of exposure to substances so long as the cause was difficult to figure out when the injuries became manifest, as the majority concludes. Rather, the Legislature was concerned only with the latent effects of exposure—i.e., latent diseases triggered by (but manifest well after) an initial (and sometimes prolonged) exposure to a toxic substance. Section 214-c (2) and (4) simply represent the compromise struck by the Assembly and the Senate to reconcile their differing time-of-discovery rules for latent diseases, previously discussed.

The majority further speculates that “it seems reasonable that the authors of CPLR 214-c (4) would have considered even a few hours of latency enough to justify the extension of the statute of limitations authorized by that subdivision” (majority op at 599). If this was part of the authors’ design, they kept it well hidden. The statute’s legislative history evidences only a desire to enact a time-of-discovery rule for plaintiffs afflicted with latent diseases, such as workers exposed to asbestos or the adult daughters of mothers who ingested DES during pregnancy, not a free-floating intention to alter the accrual rule in every case where a disease’s etiology is difficult to divine.

II

In this case, the scientific evidence does not provide a sound basis for a jury to conclude that plaintiffs strokes were a latent effect of his exposure to dietary supplements containing ephedra. At least, this is what I glean from the District Court’s opinion addressing general causation (see In re Ephedra Prods. Liab. Litig., 393 F Supp 2d 181 [SD NY 2005]), handed down in the consolidated ephedra litigation, and the same Judge’s later decision concluding that this plaintiffs lawsuit was time-barred.

Ephedra is a plant that contains several chemically related biologically active substances known as ephedrine alkaloids. The ephedra products at issue in the consolidated litigation combined ephedra with caffeine, and were marketed to consumers seeking weight loss, increased energy and improved athletic performance (id. at 185-186). The District Court Judge conducted a Daubert hearing to assess, as particularly relevant here, whether evidence might be introduced at trial that dietary supplements containing ephedra/ephedrine cause strokes.

After a two-week evidentiary hearing at which various scientists testified as generic experts for plaintiffs and the defense, the District Court Judge concluded that none of plaintiffs’ experts would be permitted to testify “with any *606degree of medical or scientific ‘certainty’ ” that ephedra causes strokes (id. at 187). He did, however, also rule that some of plaintiffs’ experts would be permitted to testify (based on such things as animal studies, analogous human studies, and plausible theories of the biological mechanisms involved) that there was a reliable basis to believe that ephedra might be a contributing cause of strokes in people with, for example, high blood pressure or a genetic sensitivity to ephedra—provided that such experts qualified their testimony with the acknowledgment that none of this had been the subject of a definitive study and might in the future be disproved (id. at 186-187).

The biologically plausible theory about how ephedra might cause injury—one of the factors that persuaded the District Court Judge to allow some of plaintiffs’ generic experts to offer an opinion that ephedra might be a contributing cause of strokes in susceptible individuals—was that ephedra was known to “stimulate cardiovascular activity and constrict blood vessels, thereby increasing stress on the heart and circulatory system” (id. at 194; see also id. at 192 n 8 [discussing hypothesis that heart attacks, strokes or sudden death might be triggered by the coincidence of peak events, such as transient peak blood pressure due to other causes, occurring at the same time as peak ephedrine blood level]). The Judge also noted that ephedra is short-acting (id. at 193).

The District Court Judge subsequently dismissed plaintiffs complaint as time-barred under CPLR 214-c. He specifically commented that

“evidence admitted during the Court’s extensive Daubert hearings showed that ephedra acts within a few hours to cause a transitory elevation of blood pressure and heart rate and a temporary constriction of certain blood vessels. . . . Experts designated by [plaintiff] have submitted reports stating that these immediate effects of ephedra may likely be a contributing cause of stroke in some people” (In re Ephedra Prods., 2006 WL 944705, *1, 2006 US Dist LEXIS 18691, *3-4 [SD NY 2006] [emphases added]).

He then cited a decision by the Second Circuit holding that an injury manifest “within a few weeks” after exposure to a toxic substance was latent and therefore governed by section 214-c (2006 WL 944705 at *1, 2006 US Dist LEXIS 18691 at *4). The *607Judge observed, however, that “[b]y contrast” with this decision, “researchers in a study of ephedra and stroke . . . did not consider stroke patients to have been relevantly exposed . . . unless they used [ephedra] within three days before their stroke”; and that “indeed, because of ephedra’s short-acting properties, the researchers studied strokes that occurred within 24 hours after using ephedra.” (Id.) He therefore concluded that “[t]o hold § 214-c applicable to a stroke allegedly caused by ephedra would effectively eliminate the statute’s limitation to ‘latent effects.’ ” (Id.)

In other words, based upon scientific evidence adduced at the Daubert hearing and credited by the District Court Judge, he concluded that any stroke attributable to ephedra would have been caused by an exposure occurring shortly (24 hours to three days) beforehand. This is because ephedra is short-acting and its effects transitory, not permanent; therefore, it is not biologically plausible for plaintiffs strokes to have been caused by his initial exposure to ephedra, or the cumulative effect of his exposures over time. As a result, plaintiffs strokes were not a latent disease within the meaning of section 214-c (4).

Plaintiffs attorney argues in his reply brief that “assuming latency is a requirement for applying [CPLR 214-c (4)], same is present because the stroke resulted from ingestion of the product over time”; and that “plaintiff did become ill after using Ephedra based products for two years.”* In other words, he proposes that it was, in fact, plaintiffs initial and repeated exposures to ephedra over a two-year period which rendered him susceptible to a stroke by effecting permanent physiological change, presumably by creating a condition of permanently elevated blood pressure. I simply do not think the District Court Judge accepted as reasonably based on good science the notion that ephedra might act on the human body to cause a stroke in this manner (see e.g. 393 F Supp 2d at 194 [noting three points on which the scientific evidence is “sparse and inconclusive”]). If I am wrong about that, I would agree with plaintiff that section 214-c (4) governs the timeliness of his cause of action, and *608that this would be the case whether he suffered a stroke 24 hours or 24 years after he last ingested ephedra.

Ill

The majority’s interpretation of section 214-c (4)—divorcing it from whether the exposure to a substance may have caused a latent disease and focusing solely on the lapse of time from last exposure to manifestation of illness—creates a number of practical problems. The Second Circuit asked if injuries occurring within 24 to 48 hours after exposure to a substance were “latent” within the meaning of section 214-c. In response, the majority holds that “an injury that occurs within hours of exposure to a substance can be considered ‘latent’ for these purposes” (majority op at 594 [emphasis added]). Is “within hours” the same as 24 to 48 hours, or is it a shorter period of time? What about 12 hours? Eight hours? Presumably, “within hours” must mean at least two hours, or does it? Is this purely a legal judgment, or is scientific evidence relevant? When an effect occurs “within hours” of exposure to a substance, does it matter whether a scientist would consider such an effect to be latent?

The majority acknowledges that a disease is not latent if symptoms appear “as soon as” or “at once” upon exposure. Indeed, the majority almost has to make this concession or it would be even more obvious than it already is that section 214-c (4) now covers lawsuits relating to the “effects”—not just the “latent” effects—of exposure to a substance, despite the majority’s answer to the first certified question. But what do “as soon as” or “at once” mean in this context? Most substances that are ingested, for example, are not instantaneously absorbed. Does whether an injury is latent depend upon scientific evidence about how quickly a substance is taken up in the body or reaches a certain concentration in the blood?

It is difficult to predict the practical effects of the majority opinion. Certainly we now have a six-year statute of limitations in New York, running from the date an injury becomes manifest, for every purported side effect of a drug or other substance that may be ingested, subject to the restrictions in section 214-c (4)—the five-year and one-year limits and the necessity for proof about the state of medical or scientific evidence at the relevant time. Because there is no reason to believe that the Legislature had any such result in mind when it enacted CPLR 214-c (4), I respectfully dissent.

*609Chief Judge Lippman and Judges Ciparick and Jones concur with Judge Smith; Judge Read dissents in a separate opinion in which Judges Graffeo and Pigott concur.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the New York State Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.

Plaintiffs attorney does not indicate how frequently plaintiff may have ingested ephedra over a two-year period. The District Court Judge noted that the label on one of the ephedra products did not state any maximum period for continuing the daily “suggested use” of up to 96 milligrams, while a competing product recommended a maximum daily dosage for a healthy adult of no more than 100 milligrams in a 24-hour period for not more than 12 weeks (393 F Supp 2d at 194 n 10).