Last December, in Caronia v. Philip Morris USA, Inc., 2013 N.Y. Slip Op. 08372, 2013 WL 6589454, New York’s highest court declined to create a stand-alone medical monitoring tort for a smoker who sought damages for the increased risk of developing disease. In February, a New York intermediate appellate court applied the Caronia decision to a case involving the contamination of soil and groundwater with trichloroethylene (TCE) (Ivory v. International Business Machines Corporation, 2014 N.Y. Slip Op. 01230, 2014 WL 641883 (N.Y. App. Div. 2014)), finding that plaintiffs who presented evidence of property damage from the contamination could seek recovery for medical monitoring.
In Caronia, the New York Court of Appeals rejected the claim of a heavy smoker against Philip Morris where the plaintiff did not allege he suffered from any smoking-related diseases. Instead, he alleged that the increased risk of developing diseases from smoking entitled him to damages for the cost of monitoring him for the development of those diseases. The Caronia court rejected his claim and explained, “A threat of future harm is insufficient to impose liability against a defendant in a tort context.”
In Ivory, the owner of a machine manufacturing plant was the subject of a class action alleging negligence, private nuisance, and trespass. The plaintiffs sought medical monitoring damages for their alleged exposure to TCE. The appellate court applied Caronia and concluded that the claims for medical monitoring damages were properly dismissed for all but two plaintiffs. The court explained that the plaintiffs who did not have evidence of a present physical injury or property damage could not pursue damages for medical monitoring. However, the two plaintiffs who had presented evidence of property damage (contaminated soil under their property) could pursue medical monitoring damages consequential to their trespass claims. The Ivory court relied upon language in Caronia that requires “evidence of present physical injury or damage to property” before medical monitoring damages can be pursued. (Emphasis added.)
The Ivory decision refines the rule in New York that a plaintiff cannot bring a stand-alone claim for medical monitoring. Rather, New York requires a plaintiff to show physical injury or property damage as a prerequisite to seeking medical monitoring damages.
Ivory emphasizes that property damage alone can be sufficient to allow a plaintiff to pursue medical monitoring damages. Bodily injury is not required. Ivory does not change New York’s position on a medical monitoring, but it is significant for any company facing claims of exposure to toxic substances from environmental contamination. Property damage from the alleged contamination allows a plaintiff to also seek damages for monitoring potential health problems from the contamination. Whether such a claim would be successful would depend on the facts of each case.