Environmental Litigation

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.1Notably, 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 Caroniathat 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 Caroniabarring 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 inCaronia 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.