LEVAL, J., concurring:, (2nd Cir. 2002)
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LEVAL, J., concurring:
I concur with the majority's opinion. I agree with the majority that "Section 214-c, as
modified by the FRCD, gives the plaintiff one year from the date of discovery of the cause of the
injury to commence a lawsuit (or three years from the date of discovery of the injury, if longer)
and that provision satisfies the requirements of the FRCD."
I write separately to note only that, in my view, the scientific knowledge proviso of § 214-
c(4) is incompatible with the FRCD, and that the majority's discussion of the various possible
meanings of the proviso is therefore superfluous.
The New York statute purports to establish different accrual dates for claims of personal
injury caused by hazardous substances. Section 214-c(2) specifies plaintiff's discovery of the
injury as the accrual date (and allows a plaintiff three years from that date). This accrual date is
illegal under the FRCD because it commences at a date earlier than the "the date the plaintiff
knew (or reasonably should have known)" the cause of injury. See 42U.S.C. § 9658(b)(4)(A).
Section 214-c(4), on the other hand, specifies the plaintiff's "discovery of the cause of the injury"
as the accrual date (and allows one year). This provision is lawful under the FRCD because its
accrual date occurs no earlier than the date the plaintiff knew or reasonably should have known
the cause of the injury.
However, under the literal terms of the New York statute, § 214-c(4)'s discovery-of-cause
accrual date is not always available to plaintiffs. To qualify for this accrual date, a plaintiff must
satisfy two conditions. First, the discovery of the cause of injury must have occurred less than
five years after discovery of the injury. If a plaintiff fails to satisfy this requirement, the
timeliness of his suit is judged under § 214-c(2). The latter section, however, utilizes an accrual date that is illegal under the FRCD. Accordingly, our opinion makes clear that the district court correctly nullified the 5-year limitation. Because of the impact of the FRCD, a plaintiff may bring his suit under § 214-c(4) within one year of discovery of the cause of injury, regardless whether this occurred within 5 years of the discovery of the injury.
The second hurdle a plaintiff must clear in order to use § 214-c(4)'s discovery-of-cause accrual date is the scientific knowledge proviso. It requires a showing that "technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined" within three years of discovering the injury. A plaintiff who fails to make this showing is similarly relegated to the limitation period established in § 214-c(2). As noted, however, § 214-c(2)'s limitation period is unlawful because it uses an accrual date earlier than the earliest accrual date allowed by the federal statute.
The only function the scientific knowledge proviso can serve is to disqualify a plaintiff from using the lawful accrual date established by § 214-c(4), requiring the plaintiff's timeliness to be judged by the unlawful terms of § 214-c(2). The scientific knowledge proviso, like the condition requiring the discovery of cause to be within five years of the discovery of injury, cannot function lawfully; it is therefore preempted by the FRCD and must be disregarded.
Accordingly, in my view the majority opinion's discussion of the different possible interpretations of the scientific knowledge proviso is superfluous and moot.
The majority opinion recognizes this problem when it states, "To the extent . . . that the scientific-knowledge provision of CPLR § 214-c(4) imposes an accrual date earlier than the date on which the plaintiff knew or reasonably should have known the cause of the injury, it is . . . preempted by the FRCD." But if the only function of the scientific knowledge proviso is to disqualify a plaintiff from using § 214-c(4)'s lawful accrual date, thereby forcing him to use the unlawful date of § 214-c(2), then the proviso cannot survive, and a debate over the different meanings the New York legislature may have intended has no useful application.
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