Page 2 - Complex Litigation

S2 | MONDAY, MAY 23, 2016 | Complex Litigation
| NYLJ.COM

A Need for

Additional Clarity

Medical
In

Monitoring

standard for medical monitoring relief is both medical testing for the early detection of a court held that medical monitoring costs
BY STEPHEN J. RICCARDULLI, warranted and timely, particularly in light of medical condition caused by exposure to could be recovered as consequential dam-
MICHAEL J. DILLON
an unfortunately muddled standard in this the contaminant. However, not every per- ages “so long as the remedy is premised
AND SONIA H. LEE
jurisdiction.
son claiming exposure to a toxic substance on the plaintiff establishing entitlement to
The circumstances of plaintiffs in toxic is entitled to such relief. New York courts, damages on an already existing tort cause
The discovery of environmental contami- tort lawsuits vary. Some plaintiffs allege as in many other jurisdictions, permit medi- of action.”3 In this respect, Caronia provided
nants in drinking water in Flint, Mich. property damage due to the intrusion of the cal monitoring relief only where the plaintiff much-needed guidance. Unfortunately, Caro-
and Hoosick Falls, N.Y., has recently contaminant. Some plaintiffs allege they pres- can produce evidence suficient to “guarantee nia did not say enough. In fact, the Caronia

received a great deal of governmental and ently suffer from medical conditions that are the genuineness” of her claim.1 The question, decision highlights the inirm and confused
media attention, prompting lawsuits from caused by exposure to the contaminant, while then, is what is required to “guarantee the standard concerning how a plaintiff may
individuals who were exposed to such con- others—who do not suffer from or exhibit genuineness” of such a claim? Despite 70+ establish her entitlement to medical moni-
taminants. A number of these suits include symptoms of a medical condition—assert a years of New York jurisprudence concerning toring relief.
claims for “medical monitoring,” which are purported fear and an alleged increased risk toxic exposure claims, the answer remains In Caronia, the plaintiffs did not claim that
often included in toxic tort suits—including of developing a speciic disease or medical murky.
they suffered from or exhibited symptoms of
past and present actions iled in New York condition in the future due to their alleged It was only in December 2013, that the N.Y. a current medical condition. Instead, they
courts. Thus, an examination of the New York
exposure. Accordingly, these plaintiffs—par- Court of Appeals clariied whether a cause of alleged that they were at an “increased risk”
ticularly this latter group—often seek the action for medical monitoring exists, or if it of developing lung cancer as a result of smok-

costs of medical monitoring.
is merely a form of relief. In Caronia v. Philip ing defendant’s cigarettes. Thus, the plaintiffs CK
STEPHEN J. RICCARDULLI and MICHAEL J. DILLON are “Medical monitoring” is premised upon Morris USA,2 the court held that New York asserted an equitable cause of action for med- STO
partners, and SONIA H. LEE is an associate, at Norton the theory that a plaintiff should be entitled does not recognize an independent cause of ical monitoring, seeking the establishment of BIG
Rose Fulbright in New York.
to recover from a tortfeasor the costs of
action for medical monitoring. Rather, the
a medical monitoring program which they

Inside
Complex Litigation

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Kris Fischer, Editor-In-Chief

Angela Turturro, Sections Editor
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Center Stage?
BY DANIEL I.A. SMULIAN, Horizon Case Settlements

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