Giordano v. Market America, Inc.

06-2071-cv
Giordano v. Market America, Inc.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
(Argued: November 8, 2007 Final Submission: April 7, 2009 4
5
Certified Question Answered: November 18, 2010; 6
Decided: February 8, 2011) 7
Docket No. 06-2071-CV 8
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JOHN GIORDANO, 10
Plaintiff-Appellant, 11
- v - 12
MARKET AMERICA, INC., and THE CHEMINS COMPANY, INC., 13
Defendants-Appellees. 14
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Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges. 16
Appeal by the plaintiff from a judgment entered in the 17
United States District Court for the Southern District of New 18
York (Jed S. Rakoff, Judge) granting summary judgment to the 19
defendants on statute-of-limitations grounds. We certified three 20
questions to the New York Court of Appeals, see Giordano v. Mkt. 21
Am., Inc., 599 F.3d 87 (2d Cir. 2010), which it has now answered, 22
see Giordano v. Mkt. Am., Inc., 15 N.Y.3d 590, --- N.Y.S.2d ---, 23
--- N.E.2d ---, 2010 WL 4642451, 2010 N.Y. LEXIS 3284 (Nov. 18, 24
2010). In light of those answers, the judgment of the district 25
court is: 26

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1 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
Vacated and Remanded. 1
BRIAN J. ISAAC, Pollack, Pollack, Isaac 2
& De Cicco, LLP, for Sanders, Sanders, 3
Block & Woycik, P.C. (Joseph B. Viener, 4
of counsel), New York, New York, for 5
Plaintiff-Appellant. 6
ANDREW ZAJAC, Fiedelman & McGaw, 7
Jericho, New York, for Defendant- 8
Appellee Market America, Inc. 9
EDWARD J. STOLARSKI, JR., Wilbraham, 10
Lawler & Buba, Philadelphia, 11
Pennsylvania, for Defendant-Appellee The 12
Chemins Company, Inc. 13
PER CURIAM : 14
15
We return for a third time to this appeal from a 16
judgment of the United States District Court for the Southern 17
District of New York (Jed S. Rakoff, Judge) granting summary 18
judgment to the defendants on statute-of-limitations grounds. 19
See In re Ephedra Prods. Liab. Litig., No. 04-MD-1598, 2006 WL 20
944705, 2006 U.S. Dist. LEXIS 18691 (S.D.N.Y. Apr. 10, 2006) 21
("Ephedra"). We assume the parties' and readers' familiarity 22
with the facts and lengthy procedural history of this case, and 23
the issues presented on appeal, 1 which we repeat here only as we 24
think necessary to explain our resolution of this appeal. 25

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2 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
The district court's grant of summary judgment rested 1
on its interpretation of section 214-c(4) of the New York Civil 2
Practice Law and Rules, which extends the statute of limitations 3
in certain tort cases arising out of exposure to an allegedly 4
harmful substance. 2 As an initial matter, the district court 5
determined that, although section 214-c(4) does not include the 6
word "latent" in its text, "its express reference to 7
[subdivisions] 2 and 3 [of section 214-c, which explicitly do 8
require latency], and the cases interpreting § 214-c as a whole, 9
show that [subdivision] 4's additional time to discover the cause 10
of injury operates only for injuries caused by latent effects." 11

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4
Ephedra, 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 18691, at 1
*3. Based upon this understanding, the district court concluded 2
that "[a] stroke allegedly caused by ephedra is not an injury 3
caused by latent effects," within the meaning of 214-c(4), id., 4
because strokes caused by ephedra usually occur within hours or 5
days of a person's ingestion of the substance – too short a time 6
to be "latent," id., 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 7
18691, at *4. 8
The district court's interpretation of section 214-c(4) 9
raised what we considered to be "difficult questions of New York 10
law." Giordano v. Mkt. Am., Inc., 289 F. App'x 467, 468 (2d Cir. 11
2008) (summary order) ("Giordano I"). We therefore certified 12
three questions to the New York Court of Appeals: 13
1. Are the provisions of N.Y. C.P.L.R. 14
§ 214-c(4) providing for an extension of the 15
statute of limitations in certain 16
circumstances limited to actions for injuries 17
caused by the latent effects of exposure to a 18
substance? 19
2. Can an injury that occurs within 24 to 48 20
hours of exposure to a substance be 21
considered "latent" for these purposes? 22
3. What standards should be applied to 23
determine whether a genuine issue of material 24
fact exists for resolution by a trier of fact 25
as to whether "technical, scientific or 26
medical knowledge and information sufficient 27
to ascertain the cause of [the plaintiff's] 28
injury" was "discovered, identified or 29
determined" for N.Y. C.P.L.R. § 214-c(4) 30
purposes? 31
Giordano v. Mkt. Am., Inc., 599 F.3d 87, 101 (2d Cir. 2010) 32
("Giordano II"). The Court of Appeals answered them as follows: 33

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3 The New York Reports citation and Westlaw version of
the Court of Appeals' opinion are not paginated; pinpoint
citations are therefore unavailable.
5
(1) the provisions of CPLR 214-c(4) are 1
limited to actions for injuries caused by the 2
latent effects of exposure to a substance; 3
(2) an injury that occurs within hours of 4
exposure to a substance can be considered 5
"latent" for these purposes; and 6
(3) "technical, scientific or medical 7
knowledge and information sufficient to 8
ascertain the cause of [the plaintiff's] 9
injury" is "discovered, identified or 10
determined" within the meaning of the statute 11
when the existence of the causal relationship 12
is generally accepted within the relevant 13
technical, scientific or medical community. 14
Giordano v. Mkt. Am., Inc., 15 N.Y.3d 590, ---, --- N.Y.S.2d ---, 15
---, --- N.E.2d ---, ---, 2010 WL 4642451, at --, 3 2010 N.Y. 16
LEXIS 3284, at **1 (Nov. 18, 2010) ("Giordano III") (brackets in 17
original). In light of these responses, we vacate the district 18
court's judgment and remand the matter to the district court for 19
further proceedings. 20
Summary judgment was not warranted here for two reasons. 21
First, contrary to the district court's conclusion, 22
under the New York Court of Appeals' decision, the plaintiff's 23
injury could be "latent" for the purposes of C.P.L.R. 214-c(4) 24
despite the short time between Giordano's ingestion of ephedra 25
and the onset of his injury. The Court has advised that the fact 26
that Giordano developed the aneurism and suffered the subsequent 27
strokes within days, or even hours, of his ingestion of Thermo- 28
Chrome 5000, a supplement containing ephedra, does not foreclose 29

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6
a finding of latency. See Giordano III, 15 N.Y.3d at ---, --- 1
N.Y.S.2d at ---, --- N.E.2d at ---, 2010 WL 4642451, at --, 2010 2
N.Y. LEXIS 3284, at **10–**14. Inasmuch as the district court 3
did not evaluate whether the plaintiff has created a triable 4
issue of fact on the issue, it may do so in the first instance on 5
remand. If there is such an issue of fact, and if the plaintiff 6
prevails on the second issue outlined below, the factual issue 7
will of course have to be resolved by a trier of fact. 8
Second, insofar as the plaintiff's claims are not 9
foreclosed as a matter of law by section 214-c(4)'s latency 10
prerequisite, the district court must decide on remand whether 11
there was "general acceptance of [the] relationship [between 12
ephedra and aneurism and strokes] in the relevant technical, 13
scientific or medical community," Giordano III, 15 N.Y.3d at ---, 14
--- N.Y.S.2d at ---, --- N.E.2d at ---, 2010 WL 4642451, at --, 15
2010 N.Y. LEXIS 3284, at **16-**17, at some time "prior to the 16
expiration of the period within which the action or claim would 17
have been authorized," N.Y. C.P.L.R. 214-c(4), under the three- 18
year statute of limitations generally applicable to cases 19
involving personal injury arising from exposure to a certain 20
substance, see N.Y. C.P.L.R. 214-c(2). On our earlier remand 21
pursuant to United States v. Jacobson, 15 F.3d 19, 21–22 (2d Cir. 22
1994), see Giordano I, 289 F. App'x at 469, the district court 23
concluded that, assuming the plaintiff's injury could be 24
considered latent, "genuine issues of material fact remain[] to 25
be resolved" under any standard for determining "whether the 26

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7
information available prior to March 2002 was sufficient to 1
'enable' the medical or scientific 'community' to 'ascertain' the 2
'probable' causal relationship between ephedra and Giordano's 3
injury," In re Ephedra Prods. Liab. Litig., 598 F. Supp. 2d 535, 4
537 (S.D.N.Y. 2009). The district court itself has thus 5
recognized to that extent the existence of questions for a finder 6
of fact. If the plaintiff's causes of action are not foreclosed 7
by the district court's judgment as to "latency," the "general 8
acceptance" issues, too, will have to be resolved by a trier of 9
fact. 10
For the foregoing reasons, the judgment of the district 11
court is vacated and the case is remanded for further 12
proceedings. 13

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