In Caronia v. Philip Morris USA, Inc., 2013 N.Y. LEXIS 3476, 2013 N.Y. Slip. Op. 8372 (December 17, 2013), the New York Court of Appeals, in a 4-21 decision with sharp and barbed contrasts between majority and dissent, ruled that New York does not recognize an independent medical monitoring cause of action. No state decision had ever gone as far as to recognize such a claim under New York law (at least not as an independent claim in the absence of proven physical injury or property damage), but there were a myriad of Federal decisions (incorrectly) predicting that New York would recognize an independent claim for medical monitoring. Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 538-539 (S.D.N.Y 2007); Gibbs v. E.I. DuPont De Nemours & Co., 876 F. Supp. 475, 478-479 (S.D.N.Y. 1995); Beckley v. United States, 1995 WL 590658, *4, 1995 US. Dist. LEXIS 14599, *9 (W.D.N.Y. 1995), but see, In re World Trade Center Disaster Site Litig., 2006 WL 3627760, *3 (S.D.N.Y. 2006).
The word “independent” is significant. As discussed below, New York has allowed “medical monitoring” claims to attach as elements of consequential damage to ordinary negligence and property damage claims. It also allows for “medical monitoring” in the limited instances where a “phobia” claim is allowable (cancer “phobia,” asbestos “phobia,” etc.). The sharp split between majority and minority, as well as the conciliatory nature of the majority opinion, suggests as much.
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