ALBANY – A divided Court of Appeals refused Tuesday to recognize a New York cause of action that would force Philip Morris to pay for perpetual medical tests for current and former smokers to detect the first signs of cancer.

The majority in the 4-2 decision conceded that there were “significant policy reasons” for recognizing a medical monitoring cause of action. But it said that taking such an action could flood the courts with the claims of tens of millions of smokers worried about the health effects of their tobacco use.

In addition, allowing plaintiffs without symptoms 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 the result of the exposure,” Judge Eugene Pigott Jr. (See Profile) wrote for the majority in Caronia v. Philip Morris USA, 227.

The Legislature is in a far better position than the court to determine the “impact and consequences” of creating a medical monitoring cause of action in New York, Pigott wrote. He said that includes quantifying the “costs of implementation and the burden on the courts in adjudicating such claims.”

The majority said that Appellate Division Departments in New York have consistently held that medical monitoring is an element of damages that may only be recovered after a physical injury has been proven, citing the precedent-setting Abusio v. Consolidated Edison of New York, 238 AD2d 454 (2d Dept. 1997).

But Chief Judge Jonathan Lippman (See Profile) said in a dissent that the majority was taking an “indefensible” position.

“The majority resolutely stands frozen in time as it denies plaintiffs the opportunity to take advantage of life-saving technology,” Lippman wrote in an opinion in which he was joined by Judge Jenny Rivera (See Profile).

Lippman argued that developing a practical system of medical monitoring for smokers was not as imposing a task as the majority claimed it was. He said state courts in Florida and Maryland have recognized workable systems for conducting ongoing examinations of people exposed to toxic substances.

“Where, as here, it is within the Court’s power to provide a vehicle for plaintiffs to seek equitable relief capable of forestalling profound suffering and death, judicial hesitance and legislative deference only serve to thwart the ends of justice,” Lippman wrote.

Lippman said the reality of lung cancer, which is attributed to smoking in the overwhelming majority of cases, is that its victims cannot wait until the disease manifests itself.

“Plaintiffs are unlikely to manifest symptoms of lung cancer unless and until the disease is at 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,” Lippman said.

Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile) and Sheila Abdus-Salaam (See Profile) joined Pigott to form the majority.

Judge Robert Smith (See Profile) did not take part in the ruling.

Kenneth Parsigian of Latham & Watkins in Boston represented Philip Morris.

Murray Garnick, associate general counsel of Philip Morris USA’s parent company, Altria, said in a statement, “We believe that the New York Court of Appeals correctly held that there is no basis under the law that supports creating a medical monitoring claim.”

Victoria Phillips of Phillips & Paolicelli in Manhattan, who argued for the plaintiffs, said the dissenters “really got it right.”

“Given Philip Morris’ profound wrongdoing in this case and the fact that the plaintiffs and the class members are at an increased risk for contracting cancer, we think they should have been able to pursue an independent cause of action for medical monitoring,” she said in an interview.

Phillips said the medical monitoring cause of action in a class-action case in Massachusetts similar to Caronia, Donovan v. Philip Morris USA, 455 Mass 215 (2009), has so far been upheld by courts in that state.

Lippman cited Donovan and advances in imaging technology through Low-Dose Computerized Tomography scanning of the chest to detect early-stage malignancies when making his argument for adopting the new cause of action.

Phillips said the success of the Massachusetts case would not benefit the three plaintiffs in Caronia, Marcia Caronia, Linda McAuley and Arlene Feldman.

All three women sued Philip Morris in 2006, contending that its cigarettes had significantly increased their risk of developing lung cancer. The Caronia plaintiffs sought for Philip Morris to establish a court-supervised program of medical monitoring for current and former smokers.

The case came to the Court of Appeals in the form of a certified question from the U.S. Court of Appeals for the Second Circuit.

The circuit asked for guidance about whether New York state law would permit the independent cause of action for medical monitoring. The federal court upheld the dismissal of other claims against Philip Morris USA for negligence, strict liability and breach of warranty in the putative class action (NYLJ, May 2).

Eastern District Judge Carol Bagley Amon (See Profile) had dismissed all the claims, including the medical monitoring claim, in Caronia v. Philip Morris USA, 11-0316-cv.

Police Testimony

In another ruling Tuesday, the Court of Appeals decided in People v. Smith, 226, that a police officer may be allowed to testify about the description a crime victim gave about his or her attacker, if that testimony does not tend to mislead the jury.

The court said its 6-1 ruling represents an expansion of People v. Huertas, 75 NY2d 487 (1990), in which the court held that crime victims could testify to their own descriptions of their attackers.

The majority said in a ruling by Smith that it could see no reason why the rule of Huertas, like CPL 60.30′s hearsay exception for prior eyewitness identifications, is limited to a witness’ account of his or her own previous statement.

“We see nothing to justify such a limitation,” Smith wrote. “A statement that is not hearsay when the declarant testifies to it does not become hearsay when someone else does so.”

Lippman, Graffeo, Read, Pigott and Abdus-Salaam agreed.

In a dissent, Rivera argued that officers’ testimony about the victim’s description of an assailant would tend to unfairly “bolster” the veracity of the victim’s testimony by being repeated by other witnesses in violation of People v. Caserta, 19 NY2d 18 (1966).

“The majority states that its decision should not be read ‘as giving carte blanche to the presentation of redundant police testimony that accomplishes no useful purpose,’ but I can see no other result from the decision,” Rivera wrote, quoting Caserta.

The case concerned whether testimony by two police officers was properly admitted at Torrel Smith’s trial for a gunpoint robbery in Yonkers. Both officers’ testimony of how robbery victim Hector Velez described his assailant was consistent with Velez’s own statements to police after the crime, the court said.

Assistant Westchester District Attorney Maria Wager argued for the prosecution. Salvatore Gaetani of the Legal Aid Society of Westchester County represented Smith.