In re Ephedra Products Litigation, No. 06-2071 (2d Cir. 2011)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 17, 2010.
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06-2071-cv Giordano v. Market America, Inc. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 5 6 (Argued: November 8, 2007 Final Submission: April 7, 2009 Certified Question Answered: November 18, 2010; 7 Decided: February 8, 2011) 8 Docket No. 06-2071-CV 9 ------------------------------------- 10 JOHN GIORDANO, 11 Plaintiff-Appellant, 12 - v - 13 MARKET AMERICA, INC., and THE CHEMINS COMPANY, INC., 14 Defendants-Appellees. 15 ------------------------------------- 16 Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges. 17 Appeal by the plaintiff from a judgment entered in the 18 United States District Court for the Southern District of New 19 York (Jed S. Rakoff, Judge) granting summary judgment to the 20 defendants on statute-of-limitations grounds. 21 questions to the New York Court of Appeals, see Giordano v. Mkt. 22 Am., Inc., 599 F.3d 87 (2d Cir. 2010), which it has now answered, 23 see Giordano v. Mkt. Am., Inc., 15 N.Y.3d 590, --- N.Y.S.2d ---, 24 --- N.E.2d ---, 2010 WL 4642451, 2010 N.Y. LEXIS 3284 (Nov. 18, 25 2010). 26 court is: We certified three In light of those answers, the judgment of the district 1 Vacated and Remanded. 2 3 4 5 6 BRIAN J. ISAAC, Pollack, Pollack, Isaac & De Cicco, LLP, for Sanders, Sanders, Block & Woycik, P.C. (Joseph B. Viener, of counsel), New York, New York, for Plaintiff-Appellant. 7 8 9 ANDREW ZAJAC, Fiedelman & McGaw, Jericho, New York, for DefendantAppellee Market America, Inc. 10 11 12 13 EDWARD J. STOLARSKI, JR., Wilbraham, Lawler & Buba, Philadelphia, Pennsylvania, for Defendant-Appellee The Chemins Company, Inc. 14 15 16 PER CURIAM: 17 judgment of the United States District Court for the Southern 18 District of New York (Jed S. Rakoff, Judge) granting summary 19 judgment to the defendants on statute-of-limitations grounds. 20 See In re Ephedra Prods. Liab. Litig., No. 04-MD-1598, 2006 WL 21 944705, 2006 U.S. Dist. LEXIS 18691 (S.D.N.Y. Apr. 10, 2006) 22 ("Ephedra"). 23 with the facts and lengthy procedural history of this case, and 24 the issues presented on appeal,1 which we repeat here only as we 25 think necessary to explain our resolution of this appeal. We return for a third time to this appeal from a 1 We assume the parties' and readers' familiarity See Giordano v. Mkt. Am., Inc., 599 F.3d 87 (2d Cir. 2010) (certifying question to the New York Court of Appeals); In re Ephedra Prods. Liab. Litig., 598 F. Supp. 2d 535 (S.D.N.Y. 2009) (answering question posed by this Court pursuant to remand under United States v. Jacobson, 15 F.3d 19, 21 22 (2d Cir. 1994)); Giordano v. Mkt. Am., Inc., 289 F. App'x 467 (2d Cir. 2008) (summary order) (identifying question to be addressed by the district court on Jacobson remand); In re Ephedra Prods. Liab. Litig., No. 04-MD-1598, 2006 WL 944705, 2006 U.S. Dist. LEXIS 18691 (S.D.N.Y. Apr. 10, 2006) (granting summary judgment in favor of the defendants). 2 1 The district court's grant of summary judgment rested 2 on its interpretation of section 214-c(4) of the New York Civil 3 Practice Law and Rules, which extends the statute of limitations 4 in certain tort cases arising out of exposure to an allegedly 5 harmful substance.2 6 determined that, although section 214-c(4) does not include the 7 word "latent" in its text, "its express reference to 8 [subdivisions] 2 and 3 [of section 214-c, which explicitly do 9 require latency], and the cases interpreting § 214-c as a whole, 10 show that [subdivision] 4's additional time to discover the cause 11 of injury operates only for injuries caused by latent effects." 2 As an initial matter, the district court Section 214-c(4) provides: Notwithstanding the provisions of subdivisions two and three of this section, 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, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section. N.Y. C.P.L.R. 214-c(4). 3 1 Ephedra, 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 18691, at 2 *3. 3 that "[a] stroke allegedly caused by ephedra is not an injury 4 caused by latent effects," within the meaning of 214-c(4), id., 5 because strokes caused by ephedra usually occur within hours or 6 days of a person's ingestion of the substance too short a time 7 to be "latent," id., 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 8 18691, at *4. Based upon this understanding, the district court concluded 9 The district court's interpretation of section 214-c(4) 10 raised what we considered to be "difficult questions of New York 11 law." 12 2008) (summary order) ("Giordano I"). 13 three questions to the New York Court of Appeals: Giordano v. Mkt. Am., Inc., 289 F. App'x 467, 468 (2d Cir. We therefore certified 14 15 16 17 18 19 1. Are the provisions of N.Y. C.P.L.R. § 214-c(4) providing for an extension of the statute of limitations in certain circumstances limited to actions for injuries caused by the latent effects of exposure to a substance? 20 21 22 2. Can an injury that occurs within 24 to 48 hours of exposure to a substance be considered "latent" for these purposes? 23 24 25 26 27 28 29 30 31 3. What standards should be applied to determine whether a genuine issue of material fact exists for resolution by a trier of fact as to whether "technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff's] injury" was "discovered, identified or determined" for N.Y. C.P.L.R. § 214-c(4) purposes? 32 Giordano v. Mkt. Am., Inc., 599 F.3d 87, 101 (2d Cir. 2010) 33 ("Giordano II"). The Court of Appeals answered them as follows: 4 1 2 3 (1) the provisions of CPLR 214-c(4) are limited to actions for injuries caused by the latent effects of exposure to a substance; 4 5 6 (2) an injury that occurs within hours of exposure to a substance can be considered "latent" for these purposes; and 7 8 9 10 11 12 13 14 (3) "technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff's] injury" is "discovered, identified or determined" within the meaning of the statute when the existence of the causal relationship is generally accepted within the relevant technical, scientific or medical community. 15 Giordano v. Mkt. Am., Inc., 15 N.Y.3d 590, ---, --- N.Y.S.2d ---, 16 ---, --- N.E.2d ---, ---, 2010 WL 4642451, at --,3 2010 N.Y. 17 LEXIS 3284, at **1 (Nov. 18, 2010) ("Giordano III") (brackets in 18 original). 19 court's judgment and remand the matter to the district court for 20 further proceedings. In light of these responses, we vacate the district 21 Summary judgment was not warranted here for two reasons. 22 First, contrary to the district court's conclusion, 23 under the New York Court of Appeals' decision, the plaintiff's 24 injury could be "latent" for the purposes of C.P.L.R. 214-c(4) 25 despite the short time between Giordano's ingestion of ephedra 26 and the onset of his injury. 27 that Giordano developed the aneurism and suffered the subsequent 28 strokes within days, or even hours, of his ingestion of Thermo- 29 Chrome 5000, a supplement containing ephedra, does not foreclose 3 The Court has advised that the fact The New York Reports citation and Westlaw version of the Court of Appeals' opinion are not paginated; pinpoint citations are therefore unavailable. 5 1 a finding of latency. 2 N.Y.S.2d at ---, --- N.E.2d at ---, 2010 WL 4642451, at --, 2010 3 N.Y. LEXIS 3284, at **10 **14. 4 did not evaluate whether the plaintiff has created a triable 5 issue of fact on the issue, it may do so in the first instance on 6 remand. 7 prevails on the second issue outlined below, the factual issue 8 will of course have to be resolved by a trier of fact. 9 See Giordano III, 15 N.Y.3d at ---, --- Inasmuch as the district court If there is such an issue of fact, and if the plaintiff Second, insofar as the plaintiff's claims are not 10 foreclosed as a matter of law by section 214-c(4)'s latency 11 prerequisite, the district court must decide on remand whether 12 there was "general acceptance of [the] relationship [between 13 ephedra and aneurism and strokes] in the relevant technical, 14 scientific or medical community," Giordano III, 15 N.Y.3d at ---, 15 --- N.Y.S.2d at ---, --- N.E.2d at ---, 2010 WL 4642451, at --, 16 2010 N.Y. LEXIS 3284, at **16-**17, at some time "prior to the 17 expiration of the period within which the action or claim would 18 have been authorized," N.Y. C.P.L.R. 214-c(4), under the three- 19 year statute of limitations generally applicable to cases 20 involving personal injury arising from exposure to a certain 21 substance, see N.Y. C.P.L.R. 214-c(2). 22 pursuant to United States v. Jacobson, 15 F.3d 19, 21 22 (2d Cir. 23 1994), see Giordano I, 289 F. App'x at 469, the district court 24 concluded that, assuming the plaintiff's injury could be 25 considered latent, "genuine issues of material fact remain[] to 26 be resolved" under any standard for determining "whether the 6 On our earlier remand 1 information available prior to March 2002 was sufficient to 2 'enable' the medical or scientific 'community' to 'ascertain' the 3 'probable' causal relationship between ephedra and Giordano's 4 injury," In re Ephedra Prods. Liab. Litig., 598 F. Supp. 2d 535, 5 537 (S.D.N.Y. 2009). 6 recognized to that extent the existence of questions for a finder 7 of fact. 8 by the district court's judgment as to "latency," the "general 9 acceptance" issues, too, will have to be resolved by a trier of 10 11 The district court itself has thus If the plaintiff's causes of action are not foreclosed fact. For the foregoing reasons, the judgment of the district 12 court is vacated and the case is remanded for further 13 proceedings. 7
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