United States: On The Heels Of Caronia: New York Appellate Court Rejects Medical Monitoring Costs Based On Mere Inhalation Of Toxic Substance

Last Updated: February 28 2014
Article by John J. DiChello,Jr.

Following the New York Court of Appeals's landmark decision last December in Caronia v. Philip Morris USA, Inc., No. 227, 2013 N.Y. LEXIS 3476 (N.Y. Dec. 17, 2013), refusing to recognize a stand-alone, equitable cause of action for medical monitoring but allowing medical monitoring as a remedy for an existing tort, the Third Department in Ivory v. IBM, No. 516276 (N.Y. App. Div. Feb. 20, 2014), ruled on February 20, 2014 that plaintiffs exposed to toxic substances may recover medical monitoring expenses as consequential damages for an underlying tort claim only if they come forward with proof of either property damage or personal injury. Significantly, the Third Department concluded that mere airborne exposure to or inhalation of a toxic substance does not satisfy the tort requirement of physical injury. The court's ruling in Ivory continues New York state courts' departure from the prior rulings of New York federal courts predicting (incorrectly) that New York would recognize an independent medical monitoring cause of action, as well as the laws of many other jurisdictions nationwide that permit stand-alone medical monitoring claims without a showing of property or physical harm.

In Ivory, a class of residents of the Village of Endicott in Broome County, New York filed several lawsuits against IBM for the contamination of groundwater with trichloroethylene ("TCE") and other solvents used by IBM in cleaning metal parts in degreasers and in manufacturing circuit boards, circuit cards, and other computer-related items at its Endicott facility between 1924 and 2002. The plaintiffs alleged that groundwater contaminated with TCE migrated from IBM's facility toward the plaintiffs' homes, contaminating soil and groundwater beneath their homes and exposing the plaintiffs to TCE through air emissions and vapor intrusion—in other words, by inhalation. The plaintiffs asserted claims for negligence, private nuisance, and trespass.

The claims of two families consisting of seven plaintiffs subsequently were severed for an initial bellwether trial.1 Notably, while two such plaintiffs, Thomas H. Ivory and Timothy Ivory, alleged that they had developed cancer from exposure to TCE, the remaining five plaintiffs did not have any physical manifestations of injury. None of the plaintiffs pleaded a stand-alone medical monitoring cause of action, which New York does not recognize anyway, but six of the plaintiffs sought medical monitoring expenses as consequential damages based on their tort claims.

In affirming the lower court's dismissal of the claims for medical monitoring damages except as to plaintiffs Timothy Ivory and Grace Odom, the Third Department in Ivory first avowed the New York Court of Appeals's ruling in Caronia that New York does not allow an independent cause of action for medical monitoring, and that medical monitoring expenses are recoverable as damages for an existing tort claim only if a party offers "evidence of present physical injury or damage to property." The Court of Appeals in Caronia based its ruling on public policy concerns associated with recognizing a new medical monitoring tort claim, namely, that dispensing with the typical tort requirement of physical injury would result in a flood of plaintiffs, many of whom may never contract a disease and are asymptomatic, seeking medical monitoring costs based on frivolous claims. Caronia, 2013 N.Y. LEXIS 3476, at *14-15. Not only would that overwhelm the courts, it would deplete the defendant's resources at the expense of those parties who may have actually suffered harm. Id. at *15. In addition, the Court of Appeals in Caronia was concerned that the judiciary lacked the technical and scientific expertise to administer a medical monitoring program. Id. at *16.

Because no plaintiff other than Timothy Ivory offered sufficient evidence of physical injuries caused by TCE,2 the Third Department in Ivory concluded only he could pursue medical monitoring as consequential damages for his negligence claim. Implicit in the court's ruling is that the inhalation of TCE, alone, is insufficient to establish the necessary physical injury to allow the plaintiffs to obtain medical monitoring relief for their tort claims. In other words, inhaling TCE, without any physical symptoms, is akin to no injury at all. Furthermore, the court held that only two plaintiffs, Grace Odom and Shawn Stevens, could seek medical monitoring damages consequential to their trespass claims because the remaining plaintiffs did not allege the necessary property damage—the contamination of soil beneath their homes.3 The court noted that the plaintiffs could not pursue medical monitoring in connection with their private nuisance cause of action because property damage is not an element of that claim and, in any event, the plaintiffs failed to allege property damage in their complaint. The remaining plaintiffs could not establish a valid underlying claim on which to base medical monitoring damages.

With respect to the plaintiffs' other claims, the Third Department reversed the lower court's denial of IBM's motion for summary judgment on the trespass claim based on vapor intrusion, air emissions, and groundwater contamination. The court reasoned that intangible intrusions such as air emissions and vapor intrusion are insufficient to establish a trespass claim (a private nuisance claim, which depends on the interference with use and enjoyment of property, may be grounded on air emissions and vapor intrusion). The court added that plaintiffs Thomas H. Ivory, Grace Odom, and Shawn Stevens could not assert a trespass claim based on groundwater contamination because groundwater does not belong to owners of real property; it is a natural resource entrusted to the state for its citizens. The court also affirmed the lower court's dismissal of the private nuisance claim asserted by plaintiff James Odom for lack of standing because he did not have legal ownership of the home at which he allegedly was exposed to TCE. Under New York law, only occupants of a home with an ownership or possessory interest may maintain a claim for private nuisance. Lastly, the court affirmed the lower court's denial of IBM's motion for summary judgment on the negligence claims of plaintiff Thomas H. Ivory and Timothy Ivory due to the existence of factual issues.

While the Third Department in Ivory allowed certain plaintiffs to proceed to trial on their claims against IBM, the court's decision, as a whole, should be considered a victory for those defending against and/or concerned about toxic tort claims in a New York forum. Not only did the Third Department reaffirm the Court of Appeals's ruling in Caronia barring medical monitoring as an independent cause of action and as a remedy absent a cognizable personal injury or property damage claim, the Third Department's decision effectively precludes the recovery of medical monitoring damages for tort claims solely based on inhalation of a hazardous substance. Under the court's ruling, inhaling a hazardous substance—without any actual, concrete physical symptom—does not constitute a discernible physical injury to support medical monitoring relief. This reinforces the public policy rationale underlying the decision in Caronia that allowing an asymptomatic plaintiff who may never contract a disease to recover medical monitoring expenses would divert money away from those who have actually sustained injuries and cause a wave of frivolous lawsuits based on speculation. The plaintiffs in Ivory, of course, are not left empty-handed, since the New York Department of Environmental Conservation and Department of Health required IBM to offer ventilation systems to owners of homes in which TCE was present as part of IBM's remediation efforts. If the New York Court of Appeals upholds this decision on appeal, defendants in toxic tort cases arising under New York law will have an additional significant safeguard against attenuated tort claims for medical monitoring costs.

Footnotes

1. The lower court originally severed eight plaintiffs, but one of those plaintiffs passed away and his claims were discontinued.

2. Plaintiff Thomas H. Ivory also presented proof of a physical injury, but he did not seek medical monitoring damages.

3. Plaintiff Shawn Stevens, however, waived her right to pursue medical monitoring costs as consequential damages associated with the trespass claim alleging property damage because she voluntarily discontinued her property damage claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John J. DiChello,Jr.
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions