July 22, 2019

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New York Appellate Panel Bars Medical Monitoring Damages Absent Injury

Implementing a recent ruling by New York’s highest court that limits the availability of medical monitoring claims, a New York Appellate Division panel barred medical monitoring damages in a groundwater contamination and vapor intrusion case absent a showing of physical injury. See Ivory v. IBM, No. 516276 (N.Y. App. Div. Feb. 20, 2014). The court found that medical monitoring damages could be recovered by Plaintiffs only where sought as consequential damages stemming from an existing tort. Id. at 7-8 (citing Caronia v. Philip Morris USA, Inc., 5 N.E.3d 11 (N.Y. 2013)). (For more information on the New York Court of Appeals decision, see previous Toxic Tort Quarterly coverage here.)

The suit stemmed from groundwater contamination under an IBM machine manufacturing facility in Broome County, New York. Id. at 2. A class of Plaintiffs sued IBM in 2008, alleging negligence, private nuisance, and trespass, and seeking medical monitoring damages. Id. Defendant moved for summary judgment to dismiss these claims, among others. Id. at 2-3. The Broome County Supreme Court issued five orders and one judgment, granting the motion regarding medical monitoring damages and partially denying the other three motions. Id. at 3.

The Appellate panel upheld the rulings, including Broome County’s dismissal of the medical monitoring damages to all Plaintiffs, with two exceptions. The court found that one Plaintiff who had developed cancer and another who had a plausible claim for property damage could pursue medical monitoring damages. Id. at 8-9. The panel’s decision did not consider whether Plaintiffs could justify medical monitoring damages under Caronia based on their alleged inhalation of evaporated TCE.

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About this Author

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm
Principal

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

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Mackenzie Schoonmaker, Environmental Lawyer, Beveridge & Diamond Law Firm
Associate

Mackenzie Schoonmaker focuses her practice on litigation and environmental regulatory matters.  Ms. Schoonmaker’s litigation practice includes representing clients in state and federal courts, as well as in data compensation arbitrations under the federal pesticide statute, FIFRA.  Most recently, Ms. Schoonmaker was part of the Firm’s trial team that secured a defense judgment in the District of Columbia Superior Court after a three week trial on tort claims alleging the client supplied corrosive water to apartment buildings.

212-702-5415