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Complex Litigation | MONDAY, MAY 23, 2016 | S3

claimed would allow for the early detection ‘inancial burden associated with periodic i.e., the time plaintiff sustained a physical to effectively administer a program heavily

and treatment of cancer.4
medical monitoring,’ . or where the plaintiff injur y—when the plaintiffs were exposed dependent on scientiic disciplines such as
The N.Y. Court of Appeals determined that alleges absolutely no injury at all[.]”9 Rather, to the environmental contaminant at issue. medicine, chemistry, and environmental
New York does not recognize such an inde- the court clariied that medical monitoring Caronia acknowledged that both decisions science”13—a result Caronia sought to avoid.
pendent cause of action, and premised this damages are only available to a plaintiff who have been superseded by §214-C of the CPLR, Caronia also embraces a relatively tooth-
determination on the long-standing require- irst prevails on an independent tort claim, and as such, “must be viewed in its proper less standard concerning what a plaintiff must
ment that “a plaintiff sustain a physical harm which invariably requires proof of a physical context,” but nevertheless reasoned that, “[g] prove to merit medical monitoring. Caronia
before being able to recover in tort . .”5 The injury that was caused by the unreasonable iven that the injuries in Askey and Schmidt cites Abusio v. Consol. Edison Co. of New
court explained that requiring a plaintiff to conduct of the defendant. Then, the court were deemed (for accrual purposes) to have York14 for this standard, which says that to
prove a “present physical injury or damage said, the plaintiff may be entitled to medical been sustained at the time of exposure, . any obtain “future medical monitoring costs fol-

to property”6 “provides a basis for the fact- monitoring as consequential damages.
and all damages lowing from those ‘injuries,’ lowing exposure to a toxic substance ., a
inder to determine whether a litigant actu- The court, however, did not deine what including damages for medical monitoring, plaintiff must establish both that (1) he or she
ally possesses a claim, and protects court constitutes such a “present physical injury” would be potentially recoverable as conse- was in fact exposed to the disease-causing
dockets from being clogged with frivolous in toxic exposure cases; and, in its attempt quential damages.”12
agent and (2) that there is a ‘rational basis’ for
and unfounded claims.”7 The court continued:
to harmonize several prior holdings (most Accordingly, Caronia could be read to sug- his or her fear of contracting the disease.”15
dispensing with the physical injury notably, Schmidt v. Merchs. Despatch Transp.10 gest that an allegation of mere exposure— “Rational basis” is established where the
requirement could permit ‘tens of mil- and Askey v. Occidental Chem.11) the court nothing more—could meet the pleading plaintiff demonstrates “the clinically demon-
may have watered down the “present physical standard for toxic tort “injury,” which in strable presence” of the toxin in the plaintiff’s
lions’ of potential plaintiffs to recover
monitoring costs, effectively flooding injury” requirement that it sought to conirm, turn forms the predicate for possible medi- body, or some indication of a toxin-induced
the courts while concomitantly deplet- disregarding the very principles that underlie cal monitoring relief. Stated differently, under disease, i.e., “some physical manifestation”
ing the purported tortfeasor’s resources its decision to disclaim “medical monitoring” Caronia’s reading of Schmidt and Askey, mere of the exposure.16 Importantly, under Abusio,
for those who have actually sustained as a stand-alone cause of action.
exposure to a toxic substance is arguably syn- it appears that a plaintiff need not prove the
damage . . Moreover, . allowing For example, one of the foremost rationales onymous with the “present physical injury” presence of the toxin and some indication of
[asymptomatic plaintiffs] to recover underlying the Caronia decision was a desire Caronia held is required to support a cause a toxin-induced disease; rather, just one will
medical monitoring costs without irst to protect court dockets from being clogged of action. If so, courts may not be able to apparently sufice.
establishing physical injury would lead to with frivolous medical monitoring claims. But dismiss medical monitoring claims at the Practically speaking, a plaintiff may opt
the pleading standard that might be gleaned pleading stage, particularly where a plaintiff’s to prove her “exposure” to a toxin by dem-
the inequitable diversion of money away
from those who have actually sustained from Caronia may not accomplish this goal. factual allegations are to be accorded every onstrating its “presence in her body,” and
an injury as a result of the exposure.8
Indeed, in dicta, Caronia attempts to harmo- favorable inference. Without a heightened argue that she has satisied the two-prong
nize the Schmidt and Askey decisions, wherein pleading standard, speculative medical moni- standard. Notably, in the 19 years since Abu-
In requiring proof of a “present physical the courts were faced with the question of toring claims will survive to trial, requiring sio, advances in diagnostic testing make it
injury,” the court also appeared to reject the when injuries accrued for purposes of the courts to determine how such relief “would easier to detect the presence of substances
premise that a plaintiff could seek “medical statute of limitations. In both cases, the courts be implemented and administered” despite in humans. Today, more than 250 environmen-
monitoring” where her “only ‘injury’ is the
held that the statute of limitations accrued—
their lack of “technical expertise necessary
tal substances can be detected » Page S10

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