NY Court of Appeals Defines "Latent" Injury Broadly for Statute of Limitation Purposes
The NY Court of Appeals – in a four/three decision handed down today -- answered certified questions involving the interpretation of CPLR 214-c, the provision that extends the statute of limitations for persons suffering latent injuries. The court ruled that the statute is limited to latent effects, but that a latent injury can be one that manifests itself several hours after exposure to a substance.
Plaintiff in Giordano v. Market America, Inc., claimed that he suffered a series of strokes as a result of taking pills containing ephedra. The effects of ephedra that allegedly increase the risk of stroke typically occur within hours of ingestion. However, plaintiff only became aware of the alleged relationship between strokes and ephedra about four years after his illness, when the death of a major league pitcher was reported in the news as being related to the drug. Thus, the suit was commenced outside the standard three year statute of limitation.
Historically, the CPLR 214-c extension has been available to parties who alleged exposure to substances that did not manifest symptoms of injury for several years – such as DES and asbestos. Today’s decision seems to broaden the application of the statute, from injuries allegedly caused by substances that are dormant in the system for years before they manifest their allegedly injurious effects, to -- pretty much -- anything that doesn’t result in an immediate, obvious physical response after exposure.
The court also held that the standard for knowledge of the purported connection between the injury and substance was whether it was sufficiently known in the scientific or expert community, not the general press. Thus, when a latent injury claim is used to extend the three year statute, the parties will have to gear up for a battle of experts.
If there is a problem with the broad definition of “latent”, it is lack of certainty about the statute of limitations. Reading the decision, you can see that a lot of effort and expense have already been incurred by plaintiff and defendant, and the case is now on its way back to federal court, probably for more of the same.
Ironically, this broad definition of latent might create more risk for a plaintiff’s counsel deciding whether to take a case, than for defendants who will be forced to do a really early evaluation of the scientific merit of a claim. Defendants are probably relieved that the focus remains on the scientific or expert knowledge, rather than the general media -- which seemingly would change the focus to the knowledge of the plaintiff.
