United States: New York High Court Holds Limitations Period for Latent Effects of Product Exposure Subject to Tolling Statute

Originally published November 29, 2010

Keywords: New York Court of Appeals, limitations period, latent effect, product exposure

The New York Court of Appeals—the state's highest court—has held, by a 4-3 vote, that a New York statute that tolls the statute of limitations for claims alleging personal injuries caused by the "latent" effects of exposure to a product or other substance may apply even if the effects manifested themselves only "a few hours" after exposure. The court further held that the limitations period commences when the "relevant technical, scientific or medical community" generally accepts a "'probable causal relationship between the substance and plaintiff's injury.'" Giordano v. Market Am., Inc., 2010 WL 4642451 (N.Y. Nov. 18, 2010).

In March 1999, plaintiff suffered a series of strokes that were purportedly caused by dietary supplements containing ephedra. In a suit filed in federal court in July 2003, plaintiff sued the manufacturer and distributor of the supplements. The defendants moved for summary judgment based on a three-year limitations period governing personal injury claims. Plaintiff responded that he was unaware of a possible link between ephedra and strokes until February 2003, when news reports alerted him to the link.

In making this claim, plaintiff relied on N.Y. C.P.L.R. 214-c(4), which provides that "where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered ... , an action may be commenced ... within one year of such discovery of the cause of the injury," provided that "technical, scientific or medical knowledge sufficient to ascertain the cause of his injury had not been discovered prior to the expiration of the period within which the action would have been authorized." Following a series of opinions in the federal courts, the Second Circuit certified several questions to the New York Court of Appeals concerning the proper interpretation of Section 214-c.

After concluding that Section 214-c(4) is "limited to injuries caused by the latent effects of exposure to a substance," the court held that "an injury that occurs within hours of exposure to a substance can be considered 'latent'" under the statute. The court explained that plaintiffs who show immediate symptoms of injury following exposure to a substance may find it relatively easy to prove a causal connection between the exposure and the injury. By contrast, the court found it "plausible that several hours' delay in the manifestation of symptoms could lead to a delay of years in detecting an injury's cause." Therefore, the court suggested that plaintiff's injury was latent under Section 214-c(4) because he did not suffer strokes until at least a few hours after taking the supplements.

The court went on to hold that the limitations period on a claim alleging personal injuries caused by the latent effects of exposure to a substance commences "when the existence of the causal relationship is generally accepted within the relevant technical, scientific or medical community." The court explained that "a causal relationship will be sufficiently ascertained for CPLR 214-c(4) purposes at, but not before, the point at which expert testimony to the existence of the relationship would be admissible" under the Frye standard. In so holding, the court rejected plaintiff's argument that the limitations period commences only when "the relevant scientific findings were publicized in the non-expert community." The court found "no unfairness in requiring that injured people who want to protect their rights seek out expert advice, rather than waiting for the media to bring a possible cause of the injury to their attention."

The dissent took issue with the majority's conclusion that a latency period of just a few hours can toll the limitations period. It found "no suggestion" that "the Legislature adopted section 214-c(4) to address any effects of exposure to substances so long as the cause was difficult to figure out when the injuries became manifest." Rather, the dissent argued that "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." Because ephedra "is short-acting and its effects transitory," the dissent would have held that "plaintiff's strokes were not a latent disease" and thus did not toll the limitations period under Section 214-c(4).

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