Eastern District of New York Recognizes “Medical Monitoring” as a Cause of Actio

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Eastern District of New York Recognizes " Medical Monitoring " as a

Cause of Action

November 14, 2008 (NewYorkInjuryNews.com - Featured News, Legal

Education)

NewYorkInjuryNews - New York City,New York,USA

http://www.newyorkinjurynews.com/2008/11/14/newyork-medical-

malpractice-lawyer-2_20081114278.html

By Papain, Esq.

In the field of toxic torts, a person who is exposed to a dangerous

substance may not develop symptoms of an injury or illness until

years after the exposure. As a consequence, a claim is sometimes

brought for what is known as " medical monitoring " . Such a claim

seeks compensation for the costs of future medical examinations or

tests reasonably intended to detect the onset of latent injuries or

diseases caused by the exposure to toxic substances, which the

claimant does not presently have but is at an increased risk of

contracting in the future.

Medical monitoring may include a claim for future diagnostic tests

and studies, used to timely detect and treat cancers and other

diseases, preventative care, and therapy for those actually stricken

with an illness.

Not all states recognize medical monitoring claims. In others, a

perceived absence of clear recognition of medical monitoring claims

leads defendants to challenge the rights of plaintiffs to bring them

at all.

Recently, in the United States District Court for the Eastern

District of New York, a judge addressed such an argument, and ruled

that medical monitoring based on toxic exposure stands as an

independent cause of action. Judge Arthur D. Spatt in Sorrentino v.

ASN Roosevelt Center (September 29, 2008), denied a landlord's

motion to dismiss a class action complaint brought by former tenants

of a luxury apartment complex located in Westbury, New York. These

tenants had been notified by their landlord that they would have to

vacate their premises because water intrusion and mold had been

found within spaces between the walls in the Westbury Complex. The

tenants needed to vacate the premises in order to do reconstruction

work.

In their complaint, the tenants disputed whether their leases had

been appropriately terminated. In addition, the tenants added claims

for medical monitoring and violation of New York. General Business

Law §349.

The landlord moved to dismiss the cause of action for medical

monitoring contending that the New York Court of Appeals has never

recognized an independent cause of action for medical monitoring,

and that such a claim may only be asserted in the form of a remedy.

Further, the landlord argued that even if a cause of action for

medical monitoring could be maintained, the tenants had failed to

allege an actionable toxic exposure.

The tenants had alleged in their complaint that the landlord caused

all potential class members reasonable apprehension of a serious

illness attributable to living in apartments infested with mold

and/or elevated levels of bacteria. Further, the tenants claimed

that as a direct and proximate result of the negligence of the

defendants, they would need ongoing diagnostic, curative and

preventative medical care because of their potential exposure to

toxic mold.

Judge Spatt determined that " [a]lthough the New York Court of

Appeals has never expressly recognized an independent cause of

action for medical monitoring, the Court disagrees with the

defendants' contention that the courts of the Appellate Division

have not done so. " Judge Spatt added that " the federal courts in

this district have found that `in cases involving exposure to toxic

materials, the New York Court of Appeals would recognize an

independent cause of action for medical monitoring.' Abbatiello v.

Monsanto Co., 522 F. Supp. 2d 524, 538 (S.D.N.Y. 2007) (collecting

cases arriving at the same conclusion). "

Further, the Court found that the tenants had properly alleged an

actionable exposure to a toxic substance by establishing both

exposure to the disease-causing agent and that there was a " rational

basis " for their fear of contracting the disease. Citing to New York

authority, the Court stated that this " rational basis " has been

construed to mean the clinically demonstrable presence of the toxic

substance in the plaintiff's body, or some indication of toxin-

induced disease, i.e., some physical manifestation of toxic

contamination. The landlord did not dispute that exposure to mold

can result in serious health effects. Further, the Amended Complaint

contained sufficient allegations that the mold caused by water-

infiltration was detected in and around the occupied spaces in the

Westbury Complex. Finally, the tenants alleged that at least some of

those exposed to the conditions at the Westbury Complex have

developed exposure-related health conditions. Accordingly, the Court

found that the tenants had stated a rational basis for exposure to a

disease-causing agent and there was a rational basis for their fear

of contracting the disease. Therefore, the Court denied the motion

to dismiss the medical monitoring claim.

The tenants' case will now proceed into what is known as

the " discovery " phase of litigation, in which the parties have the

opportunity to investigate the facts supporting the claims and

defenses at issue.

By Papain, Esq. New York Personal Injury Lawyer

concentrates his practice in personal injury, negligence, premises

liability, and products liability litigation.

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