Rothstein v. Tennessee Gas Pipeline Co.

OPINION OF THE COURT

Altman, J.

In 1986 the Legislature enacted a series of tort reforms including CPLR 214-c which adopted a discovery rule for determining the accrual date for a cause of action to recover damages for the latent effects of exposure to any harmful substance. At issue on this appeal is the applicability of CPLR 214-c to an action seeking recovery for an injury which allegedly manifested itself in 1988, but was caused by exposure to an X-ray dye some 40 years earlier. We conclude that the date-of-discovery rule is applicable and the personal injury causes of action are not time barred.

In 1948 or 1949, a radioactive X-ray contrast dye known as Thorotrast was administered to Ari Rothstein, who was then approximately 10 years old. The state of his health was unremarkable until October 1988 when he began experiencing severe abdominal pain. An MRI and CAT-scan suggested that Mr. Rothstein may have developed a hepatoma or malignancy of the liver. He was admitted to the hospital on December 5, 1988, with complaints of severe pain and a diagnosis of internal bleeding. The following day, during exploratory surgery, Mr. Rothstein died from massive internal bleeding. At that time, the existence of cancer was conclusively diagnosed.

In September 1990, Rhoda Garber Rothstein, the decedent’s wife, commenced an action against Tennessee Gas Pipeline Company (hereinafter Tennessee), American Cyanamid Company (hereinafter American) and other known manufacturers of Thorotrast or their successors in interest alleging, inter alia, that her husband’s cancer was caused by the administration of the dye. The verified complaint includes causes of action for negligence, strict products liability, wrongful death and breach of warranty. Tennessee and American successfully moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that the applicable three-year Statute of Limitations began to run when the Thorotrast was administered and, consequently, had expired decades before the complaint was served.

Prior to 1986, New York law provided that a cause of action for personal injuries caused by a toxic or other harmful substance accrued upon exposure to the substance without regard to the date on which the injury was discovered (see, Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, cert denied 456 US 967; Thornton v Roosevelt Hosp., 47 NY2d 780). The 1986 legislation remedied the inequity of this longstanding rule by adopting a discovery rule for determining the accrual date of a cause of action based on the latent effects of exposure to any substance (L 1986, ch 682, § 2, adding CPLR 214-c). A separate revival statute, not made part of the CPLR, revived for one year actions based on exposure to five specified substances which were time-barred as of July 30, 1986, the effective date of the statute, or which had previously been dismissed solely because the Statute of Limitations had expired (L 1986, ch 682, §§ 4, 12).

CPLR 214-c provides, in relevant part:

"2. Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier * * *

"6. This section shall be applicable to acts, omissions or failures occurring prior to, on or after July first, nineteen hundred eighty-six, except that this section shall not be applicable to any act, omission or failure:

"(a) which occurred prior to July first, nineteen hundred eighty-six, and

"(b) which caused or contributed to an injury that either was discovered or through the exercise of reasonable diligence should have been discovered prior to such date, and

"(c) an action for which was or would have been barred because the applicable period of limitation had expired prior to such date.”

The statute was specifically made applicable to all actions commenced on or after its effective date of July 30, 1986 (L 1986, ch 682, § 12).

In granting the motion to dismiss, the Supreme Court concluded that, because CPLR 214-c instituted a rule for future application (see, Hymowitz v Lilly & Co., 73 NY2d 487, 514, cert denied 493 US 944), it did not apply to the plaintiff’s causes of action which were based on an exposure in 1948 or 1949. The revival statute was not applicable because Thorotrast was not one of the five enumerated substances. The court further held that CPLR 214-c (6) was an interim measure which applied the discovery rule to transition cases only, cases where the exposure occurred prior to July 30, 1986, but the cause of action was not yet time barred on that date. To construe CPLR 214-c as reviving all actions which were time barred as of July 30, 1986, the court concluded, would render the revival statute meaningless.

We disagree with the Supreme Court’s narrow interpretation of section 214-c. When interpreting a statute, a court should attempt to effectuate the intent of the Legislature (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a]; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 345). Where the language of a statute is clear and unambiguous, the legislative intent may be ascertained from that language and the statute should be construed to give effect to the ordinary meaning of the words used (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [b]; § 94; Eaton v New York City Conciliation & Appeals Bd., supra, at 345; Prego v City of New York, 147 AD2d 165, 170). If the statute is remedial in nature, it should be liberally construed to advance its purpose (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 321; Prego v City of New York, supra, at 171).

CPLR 214-c was explicitly made applicable to actions which were commenced on or after its effective date. The opening phrase of subdivision (2), "[notwithstanding the provisions of section 214”, introduces a new concept of accrual independent of the traditional limitations of CPLR 214. Subdivision (2) changes the accrual date from the date of exposure to the date when the injury was discovered or, with reasonable diligence, should have been discovered. There is no reference to the date of exposure. Giving this language its clear meaning, the statute is applicable to any action commenced after July 30, 1986, where the discovery postdates the statute, regardless of the date of exposure. The statute therefore established a "prospective only discovery rule” for future application (see, Hymowitz v Lilly & Co., supra, 73 NY2d, at 515). It did not create a prospective exposure rule.

Subdivision (6) supports that conclusion by specifically providing that CPLR 214-c is applicable to acts, omissions, or failures occurring prior to July 1, 1986. It then sets forth a three-pronged exception to the general rule of applicability enunciated in the statute. The date-of-discovery rule is not applicable where: (1) the act, omission or failure occurred prior to July 1, 1986, (2) the date of discovery was prior to July 1, 1986, and (3) the action was or would have been barred because the applicable Statute of Limitations had expired prior to that date. For the exception to apply, all three criteria must be satisfied (see, Silverman v North Shore Energy Savers, 202 AD2d 571; 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 214-c.06).

There is no language in CPLR 214-c limiting the applicability of subdivision (6) to transition cases, as found by the Supreme Court. Nor is there any language in the statute from which such an intention can be implied. Had the Legislature intended to limit the statute in that manner, it would have done so (see, Prego v City of New York, supra, 147 AD2d, at 172; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156, 161). Rather, subdivision (6) saves those transition cases where the discovery predated the statute but the cause of action was not time barred as of July 1, 1986, and the action was commenced within three years of discovery but not within three years of exposure. The prospective discovery rule would otherwise have been inapplicable to such cases. At the same time, subdivision (6) explicitly excludes those cases where discovery of the injury predates the statute and the cause of action was also time barred.

Application of CPLR 214-c to a case where both the discovery and the commencement of the action postdates the statute regardless of the date of exposure is in accord with both the literal reading of the statute and its remedial purpose (see, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 214-c.06). The statute was intended to afford relief to individuals whose causes of action were barred before they were even aware of their injuries. As this Court has previously noted, "[a]mong the many indications of the remedial purpose of section 214-c are its retroactive application and the comprehensiveness of its phrasing” (Prego v City of New York, supra, 147 AD2d, at 171; see also, Di Marco v Hudson Val. Blood Servs., supra, 147 AD2d, at 159-160). New York belatedly adopted a discovery rule after more than 40 other States had already done so (see, Prego v City of New York, supra, at 174). To now hold that the statute provides no relief to present victims of prior exposures who have only recently discovered their injuries would defeat the remedial purpose of the statute. As Governor Cuomo stated in his Approval Memorandum, "this measure remedies the injustices suffered by all of the currently known categories of victims of exposure to toxic or harmful substances. These include persons who have suffered serious injuries as a result of exposure to [the five substances identified in the revival statute]” (1986 NY Legis Ann, at 288 [emphasis supplied]).

The revival statute, in contrast to CPLR 214-c, revived actions which had previously been dismissed or causes of action where the discovery of the injury predated the new discovery rule and were time barred in July 1986 and therefore would not be governed by CPLR 214-c. It is "[a] distinct but related provision, not to be confused with CPLR 214-c and its application in future cases” (Siegel, NY Prac § 40, at 48 [2d ed]). Essentially, the statute revived causes of action based on exposure to the five identified substances which would otherwise have fallen within the exception set forth in CPLR 214-c (6) as well as cases which had previously been dismissed. While CPLR 214-c also revives causes of action which were time barred by the date-of-exposure rule, the focus of section 214-c is to change the accrual date of a cause of action. Its effect is prospective because the cause of action does not arise until the injury is discovered or should have been discovered. The revival statute, on the other hand, revives actions which were dismissed as time barred and causes of action which had lapsed by either the exposure or discovery standard. The revival statute is therefore not rendered meaningless by the application of CPLR 214-c to post-July 1986 discovery cases, but rather extends rights to yet another class of injured people.

Our conclusion is also supported by the Practice Commentaries to CPLR 214-c. Judge McLaughlin indicates that the date-of-discovery rule is not popular with those "who now become subject to liability many years after they assumed they were safe from judgment” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 214-c, at 631), a scenario borne out by this case where the date of exposure so far antedates the date of discovery. Lack of popularity and a long lapse in time between the dates of exposure and discovery, however, do not alter the clear meaning of the statute.

Accordingly, we hold that the decedent’s personal injury causes of action accrued on the date his injury was discovered or should have been discovered. As his injury was allegedly discovered after July 1, 1986, the causes of action do not fall within the exception enunciated in subdivision (6) of the statute (see, CPLR 214-c [6] [b]; Fusaro v Porter-Hayden Co., 145 Misc 2d 911, affd 170 AD2d 239). Consequently, the Supreme Court erred in granting the motion to dismiss as to the personal injury and wrongful death causes of action. The causes of action for breach of warranty, on the other hand, were properly dismissed. Although not specifically addressed by the parties or the Supreme Court, those causes of action are time barred because they accrued when delivery was tendered (see, Heller v U. S. Suzuki Motor Corp., 64 NY2d 407).

We note that this appeal is from an order granting a motion to dismiss, not a motion for summary judgment, although issue had been joined when the motion was made. The allegations of the complaint are therefore assumed to be true. The ultimate merits of the various causes of action and affirmative defenses have yet to be determined.