12‐3403‐cv (L) In Re: World Trade Ctr. Lower Manhattan Disaster Site Litig.

In the United States Court of Appeals For the Second Circuit

August Term, 2013 Nos. 12‐3403‐cv (L) 12‐3729 (Con)

IN RE: WORLD TRADE CENTER LOWER MANHATTAN DISASTER SITE LITIGATION

DOROTA MARKUT, et al., Plaintiffs,

BYRON ACOSTA, et al., Plaintiffs‐Appellants, v.

VERIZON NEW YORK INCORPORATED, Defendant‐Appellee,

TULLY INDUSTRIES, INC., et al., Defendants,

WTC CAPTIVE INSURANCE COMPANY, INC., Interested‐Party,

IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.

WORBY GRONER EDELMAN & NAPOLI BERN, LLP, Cross‐Defendant.

Appeal from the United States District Court for the Southern District of New York. Alvin K. Hellerstein, Judge.

ARGUED: OCTOBER 9, 2013 DECIDED: JULY 10, 2014

Before: LYNCH, CHIN, and DRONEY, Circuit Judges.

Appeal from orders of the United States District Court for the Southern District of New York (Hellerstein, J.) dismissing claims of 211 plaintiffs for answering ʺnoneʺ to interrogatory asking them to identify ʺdiagnosedʺ conditions, injuries, and diseases for which they were seeking recovery and claims of 31 plaintiffs for failure to prosecute.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

DENISE A. RUBIN (Paul J. Napoli and W. Steven Berman, on the brief), Napoli Bern Ripka Shkolnik LLP, New York, New York, for Plaintiffs Dorota Markut, et al., and Plaintiffs‐Appellants Byron Acosta, et al.

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LEE ANN STEVENSON, Kirkland & Ellis LLP, New York, New York, (Richard E. Leff, McGivney & Kluger, P.C., on the brief), New York, New York, for Defendant‐Appellee Verizon New York Incorporated.

James E. Tyrell, Patton Boggs LLP, Newark, New Jersey, for Defendants Tully Industries Inc., et al.

Margaret H. Warner, McDermott Will & Emery LLP, Washington, DC, for Interested‐Third‐Party WTC Captive Insurance Company, Inc.

CHIN, Circuit Judge:

In the aftermath of the attacks on the World Trade Center

(ʺWTCʺ) on September 11, 2001, thousands of individuals

participated in rescue, recovery, and clean‐up operations at the

World Trade Center site and surrounding areas. Many sustained

injuries and brought lawsuits seeking compensation. These cases

were consolidated before a single judge, the Honorable Alvin K.

Hellerstein, in the United States District Court for the Southern

District of New York. In this case, plaintiffs‐appellants are cleaning

workers who purportedly were exposed to toxic contaminants while

working in buildings on the periphery of the World Trade Center

site following the attacks. Plaintiffs were employed by cleaning

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companies hired by defendants, owners of various buildings in

lower Manhattan that were damaged or destroyed in the attacks.

Two orders of the district court are challenged on this appeal.

First, the district court granted summary judgment dismissing the

claims of 211 plaintiffs who answered ʺnoneʺ to an interrogatory

asking plaintiffs to identify ʺdiagnosedʺ conditions, injuries, and

diseases for which they were seeking recovery. Second, the district

court dismissed the claims of another 31 plaintiffs for failure to

prosecute because they did not certify their interrogatory responses

by a court ordered deadline. We vacate and remand with respect to

the grant of summary judgment dismissing the claims of the 211

plaintiffs, and we affirm with respect to the dismissal of the claims

of the 31 plaintiffs for failure to prosecute.

STATEMENT OF THE CASE

A. The Statutory Background

In response to the terrorist attacks and their aftermath,

Congress enacted the Air Transportation Safety and System

Stabilization Act of 2001 (ʺATSSAʺ), Pub. L. No. 107‐42,

(codified as amended at

note). Among other

things, ATSSA established the Victimʹs Compensation Fund (the

ʺVCFʺ) to provide relief to individuals who suffered physical harm

or death as a result of the terrorist attacks. See

§§ 401, 403. To be

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eligible for the VCF, individuals were required to waive their right

to pursue damages in court for injuries that they sustained as a

result of the terrorist attacks. See id. § 405(c)(3)(B)(i). ATSSA, as

amended, also provided for a federal cause of action for damages

arising from the terrorist attacks and mandated that the United

States District Court for the Southern District of New York have

original and exclusive jurisdiction to hear such claims. See

id. § 408(b)(3) (as amended).

The VCF was originally open to claims from December 21,

2001 through December 22, 2003. See id. § 405(a)(3); see also James

Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No.

111‐347, § 202(b)(3),

(2011) (the ʺZadroga Actʺ); James

Zadroga 9/11 Health and Compensation Act of 2010,

, 54112 (Aug. 31, 2011) (codified at

). Congress

passed the Zadroga Act to amend ATSSA, reopen the VCF, and

provide medical monitoring and treatment benefits to those workers

who responded to and cleaned up after the terrorist attacks. The

Zadroga Act and its implementing regulations provided, among

other things, that to be eligible for the VCF, claimants had to

withdraw any pending civil actions for damages related to WTC

work by January 2, 2012. See

(b) (2011).

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B. The Proceedings Below

1. The Pleadings and Initial Discovery

Plaintiffsʹ claims are part of the mass tort litigation arising

from the terrorist attacks. These cases were consolidated before the

district court for pre‐trial purposes on November 1, 2002.1

In their First Amended Master Complaint (the ʺMaster

Complaintʺ), dated March 28, 2008, plaintiffs asserted claims for

negligence, wrongful death, and violations of the New York Labor

Law. They alleged that defendants failed to ʺprovide for [their]

safety, protection and well‐beingʺ by failing to adequately monitor

their working conditions and provide safety equipment to protect

them from harmful airborne contaminants. App. at 11276‐80. As a

result, plaintiffs contended that they:

sustained severe and permanent personal injur[ies] and/or disabilit[ies] and will be permanently caused to suffer pain, suffering, inconvenience and other effects of such injuries which included conscious pain and suffering and/or which may result in . . . wrongful death . . . including the fear of same . . . . In addition, [plaintiffs] incurred and in the future will necessarily incur further hospital and/or medical expenses in an

1 The Court has summarized the background of these related cases in greater

detail in McNally v. Port Authority,

, 357‐63 (2d Cir. 2005), and In re World Trade Center Disaster Site Litigation,

, 172‐75 (2d Cir. 2008).

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effort to be cured of said injuries; and . . . ha[ve] suffered and will necessarily suffer additional loss of time and earnings from employment.

Pl. Amend. Compl. at ¶ 142.

The district court required individual plaintiffs to complete

and submit a ʺPro‐Forma First Amended Complaint by Adoptionʺ

(the ʺCheck‐off Complaintʺ). The Check‐off Complaint included,

among other things, each plaintiffʹs personal information, the hours

and locations at which she worked, and the injuries she alleged as a

result of her work. Some plaintiffs also completed ʺcore discovery

responses,ʺ which contained, among other things, a list of injuries

and symptoms that they alleged resulted from WTC‐related work,

the contact information of the physicians or healthcare providers

who treated or diagnosed them, a list of diagnoses (if any) that they

received related to their injuries, and information as to whether a

physician or healthcare provider connected their injuries to

WTC‐related work. Some plaintiffs also submitted medical records.

The information generated from the core discovery responses and

the medical records were stored in court‐ordered databases.

On February 2, 2011 the district court stayed all proceedings,

with the exception of ʺcore discovery obligations,ʺ until July 25,

2011.

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2. The TCDI Database

On August 2, 2011, the district court held a conference to

determine how to proceed in light of the expiration of the July 25

stay. The district court and the parties acknowledged that,

throughout the litigation, medical information and discovery

responses had been gathered and stored in the court‐ordered

databases. Nevertheless, the district court discussed the need for a

neutral database (the ʺTCDI Databaseʺ),2 comprised of responses to a

set of interrogatories agreed to by the parties, to gather and house

essential information about each plaintiff. The district court

explained that the TCDI Database was necessary to determine how

many of the approximately 1,500 plaintiffs were pursuing their cases

or instead were opting out of the litigation to receive compensation

through the VCF under the Zadroga Act. Further, plaintiffs were to

certify their answers to the interrogatories, so as to provide reliable

information about their claims. Finally, the district court explained

and the parties agreed that the TCDI Database would serve as a tool

to choose the cases that would proceed as a group for more intensive

discovery. The further discovery would verify the reliability of

2 The TCDI Database was created and maintained by Technology Concepts &

Design Incorporated, a litigation support corporation.

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information provided in the initial discovery process and prepare

initial cases for trial.

The district court summarized the discovery and scheduling

issues that were raised at the August 2 conference in an order dated

August 29, 2011. The district court ordered counsel to create a set of

questions with the court‐appointed Special Masters that each

plaintiff would answer and certify. Plaintiffs were ʺrequired to

complete the questionnaires in a timely fashionʺ and ʺ[a]ny

[p]laintiff who fail[ed] to fill out his or her questionnaire in a time

period that enable[d] . . . th[e] discovery program to proceed

[would] be liable to be dismissed for failure to prosecute their case.ʺ

App. at 1746‐47. From the information generated by the

interrogatories and stored in the TCDI Database, the Special Masters

were to generate a list of cases from which counsel and the district

court would choose an initial 45 cases to proceed with further

discovery. The process was to be completed by October 11, 2011.

The TCDI Database was to be created through plaintiffsʹ

responses to 33 interrogatories, organized under nine headings: (1)

case profile data; (2) WTC work background data; (3) deceased

plaintiffs; (4) tobacco use; (5) pre‐existing disorders, diseases, and

anatomical abnormalities; (6) diagnosed conditions/ injuries and

diseases for which plaintiff seeks recovery in this litigation; (7) loss

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of earnings; (8) disability claims; and (9) workersʹ compensation

claims. Under the heading ʺDiagnosed Conditions/ Injuries and

Diseases for which P[laintiff] seeks recovery in this litigation,ʺ one

interrogatory asked ʺ[f]or which diagnosed

condition(s)/injury(s)/disease(s) does P[laintiff] seek recovery?ʺ

U.S.C.A. dkt. no. 12‐3403, doc. no. 164 at 2.

3. Enlargements of Time and the December 8, 2011 Order

Shortly after the August 29, 2011 order, plaintiffs asked the

district court to ʺrelaxʺ the requirement that their interrogatories be

sworn. Citing

and Federal Rule of Civil Procedure

33, the district court denied plaintiffsʹ request, but granted plaintiffs

an extension until October 31, 2011 to provide their sworn answers.

The district court granted plaintiffs a second extension on November

8, 2011. In an order dated November 17, 2011, the district court

granted plaintiffs a third extension, to December 2, 2011, providing

that ʺ[n]o further enlargements will be granted.ʺ App. at 1753.

In an order dated December 8, 2011, the district court denied

plaintiffsʹ motion to further enlarge the time for 170 plaintiffs to

provide sworn or certified answers to the interrogatories.

Accordingly, the district court dismissed these cases with prejudice

for failure to prosecute. The order provided that plaintiffs who

wished to move to open the judgment dismissing their cases had to

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file motions by January 2, 2012 showing a ground provided by

Federal Rule of Civil Procedure 60(b).

This Court affirmed the December 8 order on appeal. Cortez v.

City of New York,

(2d Cir. 2013) (per curiam).

4. Dismissal of Plaintiffsʹ Claims

In an order dated December 22, 2011, the district court

directed defendants to file a motion to dismiss 281 plaintiffsʹ claims

for which plaintiffs answered ʺnoneʺ to the diagnosis interrogatory.

The December 22 order also listed the cases that the district court

and counsel chose, based on the information in the TCDI database,

to proceed to intensive discovery and trial. The remaining cases

were stayed pending the full discovery process for these selected

cases.

On January 11, 2012, pursuant to Rule 56 and the December 22

order, defendants moved for summary judgment against 281

plaintiffs who answered ʺnoneʺ to the diagnosis interrogatory,

arguing that under New York law plaintiffs could not, in light of

their responses, maintain their causes of action. In addition,

pursuant to Rules 37 and 41, defendants moved to dismiss 132

plaintiffsʹ claims for failure to properly certify their interrogatory

responses by the December 2 deadline.

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Plaintiffs opposed the motions. As an initial matter, plaintiffs

clarified that of the 281 plaintiffs identified in defendantsʹ motion for

summary judgment, only 219 plaintiffs were pursuing their claims.

Plaintiffs argued, among other things, that defendantsʹ motion for

summary judgment against the plaintiffs who answered ʺnoneʺ

improperly relied on the TCDI Database, which was a means for

gathering and sorting through basic information about plaintiffsʹ

claims, rather than dispositive discovery. Plaintiffs submitted over

400 exhibits, consisting of plaintiffsʹ pleadings, core discovery

responses, and affidavits alleging injuries and symptoms that they

suffered because of WTC‐related work, to demonstrate that genuine

material issues of fact existed. Specifically, of the 219 plaintiffs, 203

submitted their Check‐off Complaints, 97 submitted their core

discovery responses, and 108 completed affidavits after defendantsʹ

motion for summary judgment was filed (the ʺlate affidavitsʺ).

Some 117 plaintiffs also amended their responses to the diagnosis

interrogatory on the TCDI Database to allege specific injuries,

including fear of cancer and medical monitoring. To support their

claims, plaintiffs submitted an affidavit from Shira Kramer, Ph.D.,

M.H.S., explaining that ʺWTC‐exposed populations . . . have

experienced increased risks of . . . ʹWTC cough[,]ʹ new or worsening

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upper and lower respiratory symptoms, [and] asthma,ʺ among other

things. Kramer Affidavit at ¶ 6.

In response, defendants submitted a schedule comparing the

answers of 70 plaintiffs who submitted both amended diagnosis

interrogatories and late affidavits, claiming that the injuries these

plaintiffs alleged were inconsistent and accordingly implausible.

Defendants also submitted medical records from two plaintiffs to

show that the injuries that they alleged pre‐dated the terrorist

attacks. On July 23, 2012, the district court heard oral argument on

defendantsʹ motions.

In an order dated July 25, 2012, the district court granted

defendantsʹ motion to dismiss 31 plaintiffsʹ claims for failure to

prosecute their cases for the reasons stated in the December 8 order.

The July 25 order provided that if plaintiffs wished to move to open

the judgment dismissing their cases, they could file motions by

August 24, 2012 showing a ground provided by Rule 60(b).

The district court also granted defendantsʹ motion for

summary judgment against those plaintiffs who answered ʺnoneʺ to

the diagnosis interrogatory. The district court explained that it

would not consider plaintiffsʹ affidavits that disputed their prior

sworn answers and accordingly created a material issue of fact after

defendantsʹ motion for summary judgment. Further, the district

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court found that claims for medical monitoring and fear of cancer

are not stand‐alone causes of action under New York law. The

district court ordered defendants to identify the specific plaintiffs

affected by the July 25 order.

In an order dated August 9, 2012, the district court dismissed

211 plaintiffsʹ claims identified by the defendants for the reasons set

forth in the July 25 order.

Plaintiffs appeal the July 25 and August 9 orders.

DISCUSSION

We address first the district courtʹs grant of summary

judgment against the 211 plaintiffs who answered ʺnoneʺ to the

diagnosis interrogatory and second the district courtʹs dismissal of

the 31 claims for failure to prosecute.

A. Summary Judgment

1. Applicable Law

We review the grant of summary judgment de novo,

construing the evidence in the light most favorable to the

non‐moving parties and drawing all reasonable inferences in their

favor. See Mullins v. City of New York,

(2d Cir.

2011).

Summary judgment may be granted only ʺif the pleadings,

depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.ʺ Sec. Ins. Co. of Hartford v. Old Dominion

Freight Line, Inc.,

(2d Cir. 2004) (internal quotation

marks omitted). If ʺthere is any evidence in the record from which a

reasonable inference could be drawn in favor of the opposing party,

summary judgment is improper.ʺ

. In other words, for

defendants ʺto succeed on summary judgment [they] must establish

ʹthat [plaintiffs are] unable to prove at least one of the essential

elementsʹʺ of their claims. Rubens v. Mason,

(2d Cir.

2008) (quoting Crawford v. McBride,

(2d Depʹt

2003)).

To establish their claims, plaintiffs must show that they were

injured by defendantsʹ conduct. Specifically, to establish a prima

facie case of negligence under New York law, a plaintiff must show

ʺ(1) the existence of a duty on defendantʹs part as to plaintiff; (2) a

breach of this duty, and (3) injury to the plaintiff as a result thereof.ʹʺ

Caronia v. Philip Morris USA, Inc.,

(2d Cir. 2013)

(quoting Akins v. Glens Falls City Sch. Dist.,

(1981)). Codifying common law negligence, New York Labor

Law § 200 provides for a general duty to protect the health and

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safety of employees. See, e.g., Haider v. Davis,

(2d

Depʹt 2006).

Under New York Labor Law § 241, which applies to

construction, excavation, and demolition work, ʺcontractors and

owners and their agentsʺ are required, among other things, to

ʺprovide reasonable and adequate protection and safetyʺ to their

employees, according to such rules as the commissioner of labor

may prescribe.

(6). A defendant is liable

under § 241(6) if ʺthe defendant violated a safety regulation that set

forth a specific standard of conduct, and . . . the violation was the

proximate cause of [plaintiffʹs] injuries.ʺ Wilson v. City of New York,

(2d Cir. 1996).

2. Application

In granting summary judgment based solely on plaintiffsʹ

response of ʺnoneʺ to the interrogatory, the district court erred.

While we appreciate that the sheer number of cases before the

district court made its task of managing this mass tort litigation

extraordinarily difficult, the district court was obliged to

individually consider each plaintiffʹs answer of ʺnoneʺ in the context

of any other evidence of injury.

The use of the word ʺdiagnosedʺ in the interrogatory created

some ambiguity. It was possible that a plaintiff manifested

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symptoms of a condition, illness, or disease that had not yet been

diagnosed when he answered the interrogatory. Indeed, claims

arising from exposure to toxic or harmful substances often present

nuanced and fact‐specific questions as to whether and when a

legally cognizable injury exists.

For example, under New York law, a cause of action accrues

in the toxic tort context when a plaintiff discovers an injury or ʺwhen

through the exercise of reasonable diligence such injury should have

been discovered by the plaintiff, whichever is earlier.ʺ N. Y. C. P. L.

R. § 214‐c (2). In In re New York County DES Litigation,

(1997), the New York Court of Appeals considered whether a

plaintiffʹs action for reproductive injuries resulting from her

motherʹs exposure to diethylstilbestrol (ʺDESʺ) was time‐barred.

Finding that it was, the Court held that ʺthe time for bringing [an]

action begins to run under [C.P.L.R. § 214‐c (2)] when the injured

party discovers the primary condition on which the claim is basedʺ

rather than ʺwhen the connection between [the] symptoms and the

injuredʹs exposure to a toxic substance is recognized.ʺ Id. at 509.

Accordingly, when a legally cognizable injury accrues is not

dependent on ʺthe medical sophistication of the individual plaintiff

[or] the diagnostic acuity of his or her chosen physician.ʺ Id. at 515.

Instead, C.P.L.R. § 214‐c requires only the ʺdiscovery of the

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manifestations or symptoms of the latent disease that the harmful

substance produced.ʺ Id. at 514; see also Goffredo v. City of New York,

(1st Depʹt 2006) (finding petition to serve notice

on city for personal injury as a result of exposure to harmful

substance untimely based on when symptoms manifested

themselves, rather than when illness was diagnosed).

New York courts have not established a bright‐line rule for

when symptoms or manifestations of a physical condition are

sufficient to trigger CPLR § 214‐c. See DES Litigation,

n.4 (recognizing ʺthere may be situations in which the claimant

may experience early symptoms that are too isolated or

inconsequentialʺ but declining to decide ʺprecisely where the

threshold liesʺ); cf. Sweeney v. Gen. Print.,

(3d

Depʹt 1994) (ʺ[T]he phrase ʹdiscovery of the injuryʹ necessarily

contemplates something less than full awareness that one has been

damaged as a result of exposure to a particular toxic substance.ʺ).

Courts have instead tailored their inquiries as to when a legally

cognizable injury exists in toxic tort cases to the particular facts

before them, focusing on factors such as the extent of plaintiffʹs

exposure to a toxic substance, her medical history, the onset of her

symptoms, and the manifestations of a particular illness or disease.

See, e.g., Rosner v. Mira, Inc.,

(1st Depʹt 2005)

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(finding plaintiffʹs onset of extreme pain in left eye a ʺdiscoverable

objective manifestationʺ of injury based on exposure to a toxic

substance) (quoting Krogmann v. Glen Falls City Sch. Dist.,

(3d Depʹt 1997); Whitney v. Agway Inc.,

, 784‐85

(3d Depʹt 1997) (concluding plaintiffʹs action accrued at some point

between the onset of her symptoms and her probable diagnosis,

because ʺshe was immediately aware of the existence of symptoms

that were practically identical to those classically caused by pesticide

poisoningʺ and plaintiffʹs ʺphysicians were, at the very least,

exploring the poisoning theory as a probable source of her

symptomsʺ). Contrary to defendantsʹ suggestion, therefore, a

plaintiffʹs answer of ʺnoneʺ to the interrogatory did not foreclose the

possibility that she would be able to maintain her cause of action

under New York Law.

The answer ʺnoneʺ did not necessarily preclude other

evidence of injury. Rather, the district court was required to

examine each plaintiffʹs submissions in the record to determine

whether that plaintiff raised a genuine issue of material fact as to

whether he or she had sustained a compensable injury. Some

plaintiffs submitted evidence of injury that was not, at least

arguably, inconsistent with a ʺnoneʺ answer to the interrogatory. In

our view, roughly three categories of plaintiffs existed.

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The first category includes those plaintiffs who answered

ʺnoneʺ and submitted merely Check‐off Complaints in response to

defendantsʹ motion. The grant of summary judgment against them

was proper. Not only did these plaintiffs answer ʺnoneʺ to the

interrogatory, they failed to submit any evidence of injury. Plaintiffs

were required to go beyond their pleadings to show that genuine

issues of fact existed. See Celotex Corp. v. Catrett,

(1986).3

Summary judgment was improper without more analysis,

however, as to the second category of plaintiffs ‐‐ those who offered

core discovery responses before defendants moved for summary

judgment. In these responses, several plaintiffs provided evidence

of injuries of and/or symptoms resulting from air contaminants at

the WTC site. For example, one plaintiff swore that he suffered from

chronic cough, dyspnea, and an optic problem. His symptoms

3 We reject plaintiffsʹ argument that the response to the diagnosis interrogatory

could not be a basis for summary judgment because these initial interrogatories were only preliminary. The response was still a sworn statement. Moreover, plaintiffs had the opportunity to produce other discovery to prove injury, and many in fact did. Finally, to the extent that plaintiffs needed additional time for discovery, they failed to file an affidavit pursuant to Federal Rule of Civil Procedure 56(d). See Paddington Partners v. Bouchard,

(2d Cir. 1994) (ʺ[T]he failure to file an affidavit under [this Rule] is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.ʺ).

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included, among other things, chest tightness, cough, eye irritation,

fatigue, and shortness of breath. He visited a hospital several times

for his injuries and alleged that a physician connected two of his

injuries to his WTC work. This response, in conjunction with

plaintiffsʹ expert report that identified the adverse effects of

exposure to air contaminants at the WTC site, created an issue of

material fact as to whether this plaintiff sustained injuries resulting

from defendantsʹ actions.

Another plaintiff represented in his core discovery response

that he suffered from respiratory problems. His symptoms were

dizziness, fatigue, and shortness of breath. The plaintiff indicated

that he visited a physician for these respiratory problems, but he did

not receive a diagnosis. His negative answer to the diagnosis

interrogatory, therefore, was not inconsistent with his core discovery

response and a material issue of fact existed as to whether he

suffered a legally cognizable injury. Hence, summary judgment was

premature as to these plaintiffs, as well as to other plaintiffs with

similar discovery responses as there was ʺevidence in the record

from which a reasonable inference could be drawnʺ that these

plaintiffs were injured by defendantsʹ conduct. Sec. Ins. Co. of

Hartford, 391 F.3d at 82‐83 (internal quotation marks omitted).

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The third category of plaintiffs was comprised of individuals

who did not submit core discovery responses, but instead offered

late affidavits and/or amended interrogatory responses. Whether

summary judgment was warranted as to their claims depends on the

individual responses. The district court was correct, as a general

matter, that plaintiffs may not create material issues of fact by

submitting affidavits that dispute their own prior testimony. See

Trans‐Orient Marine Corp. v. Star Trading & Marine, Inc.,

(2d Cir. 1991). The principle does not apply, however, if the

statements ʺare not actually contradictory,ʺ or ʺthe later sworn

assertion addresses an issue that . . . was not thoroughly or clearly[ ]

explored . . . .ʺ Palazzo ex rel. Delmage v. Corio,

(2d Cir.

2000).

In light of the language of the diagnosis interrogatory, it is

unclear that the late affidavits or amended interrogatory responses

necessarily contradicted plaintiffsʹ answers to the diagnosis

interrogatory. For example, one plaintiff, in her late affidavit, swore

that she suffered from bronchitis at least two times a year, chronic

coughing, and difficulty breathing. This submission was not

necessarily inconsistent with her answer of ʺnoneʺ as to whether she

sought recovery for a diagnosed condition, disease, or injury.

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Moreover, some of the plaintiffs may have had reasonable

explanations for amending their interrogatory responses. During

oral argument on the summary judgment motion, defendants

claimed that some plaintiffs amended their answers to the diagnosis

interrogatory without explanation. Plaintiffs did, however, attempt

to provide an explanation as they contended that they did not

originally understand the diagnosis interrogatory to address any

injuries other than currently diagnosed conditions. Consistent with

that explanation, many of the amended interrogatories alleged

symptoms or manifestations of illnesses that were not currently

diagnosed. Accordingly, on remand, the district court should

consider whether plaintiffsʹ individual submissions necessarily

contradicted their interrogatory responses in light of their alleged

injuries, pleadings, previous discovery submissions, and the

language of the diagnosis interrogatory.

Of course, to the extent that plaintiffs alleged independent

causes of action for medical monitoring or fear of cancer, the district

court was correct to dismiss these claims. Medical monitoring is not

an independent cause of action under New York law. See Caronia v.

Philip Morris USA, Inc.,

(2013). Similarly, to

establish entitlement to damages for fear of cancer, a plaintiff must

show a ʺʹrational basisʹ for [the] fear[,] . . . i.e., . . . a ʹclinically

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demonstrable presence of toxins in the plaintiffʹs body, or some

indication of toxin‐induced disease, i.e., some physical manifestation

of toxin contamination.ʹʺ

at 448‐49 (quoting Abusio v. Consol.

Edison Co. of N.Y.,

, 454‐55 (2d Depʹt. 1997) (brackets

in original omitted). In other words, a fear of cancer without some

physical manifestation of contamination is not an independent basis

for a cause of action. We note, however, that a plaintiff may obtain

the remedy of medical monitoring ʺas consequential damages, so

long as the remedy is premised on the plaintiff establishing

entitlement to damages on an already existing tort cause of action.ʺ

Id. at 452.

In sum, the fact that plaintiffs answered ʺnoneʺ to the

interrogatory was an insufficient basis, by itself, for a blanket

conclusion that all 211 plaintiffs could not establish their claims

against defendants as a matter of law. Instead, the district court,

with the help of the Special Masters, must assess plaintiffsʹ

submissions individually before deciding whether summary

judgment is appropriate. We note, of course, that after making this

individual assessment, if the district court finds that no genuine

issues of material fact exist as to whether a plaintiff sustained a

legally cognizable injury under New York law, summary judgment

would be proper.

‐24‐ IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.

B. Failure to Prosecute

We turn to the district courtʹs order dismissing the claims of

the 31 plaintiffs for failure to prosecute. As plaintiffs conceded at

oral argument on appeal, their claim of error is largely foreclosed by

our decision in Cortez. Plaintiffs contend, however, that the district

court erred in refusing to deem their claims dismissed nunc pro tunc

to December 8, 2011, in accordance with the December 8 order.

Plaintiffs argue that they were unable to apply for the VCF because

their dismissals were not effective by January 2, 2012, the deadline

for withdrawing civil actions. See

(b) (2011).

We review the ʺgrant or denial of equitable relief for abuse of

discretion.ʺ United States v. Zaleski,

(2d Cir.), cert.

denied

(2012). ʺNunc pro tunc, Latin for ʹnow for then,ʹ

refers to a courtʹs inherent power to enter an order having

retroactive effect.ʺ Iouri v. Aschroft,

(2d Cir. 2006). A

district courtʹs exercise of this power is ʺa far‐reaching equitable

remedy applied in certain exceptional cases, typically aimed at

rectifying any injustice to the parties suffered by them on account of

judicial delay.ʺ

(internal quotation marks, citations, and

alterations omitted).

We conclude that the district court did not abuse its

discretion. These plaintiffs had notice that to remain eligible for the

‐25‐ IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.

VCF they had to certify their interrogatories by the December 2

deadline to pursue their claims in court, or discontinue their civil

actions prior to the deadline set by the Zadroga Act and its

regulations. Indeed, there is nothing in the record to suggest that

these 31 plaintiffs did not have the same information and choices as

the plaintiffs affected by the December 8 order, those plaintiffs who

chose to withdraw their civil actions to enroll in the VCF, or those

plaintiffs who pursued their claims by complying with the district

courtʹs orders.

This is not an ʺexceptional case[ ]ʺ that warrants a

ʺfar‐reaching equitable remedy,ʺ and the district court did not abuse

its discretion in refusing to dismiss these claims nunc pro tunc.

Accordingly, we affirm the district courtʹs dismissal of the claims of

the 31 plaintiffs for failure to prosecute.

CONCLUSION

We conclude that the district court erred in granting summary

judgment to plaintiffs based solely on their answer ʺnoneʺ to the

ʺdiagnosedʺ condition interrogatory and without considering the

record as a whole. The district court did not, however, abuse its

discretion in dismissing the claims of the 31 plaintiffs for failure to

prosecute. Accordingly, the July 25 order is AFFIRMED IN PART

‐26‐ IN RE: WORLD TRADE CTR. LOWER MANHATTAN DISASTER SITE LITIG.

and VACATED IN PART. The August 9 order is VACATED. The

case is REMANDED for further proceedings.

‐27‐