Skip to main content

NY's highest court rejects medical monitoring claim

Post written by Mark Behrens, partner at Shook, Hardy & Bacon L.L.P. and co-chair of SHB's Public Policy Group
The New York Court of Appeals, the state's highest court, today rejected an equitable medical monitoring claim brought by longtime heavy smokers who have not been diagnosed with a smoking-related disease. The court said that medical monitoring is only available after a physical injury has been proven. The court explained that the "requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state's tort system" and that this physical injury requirement is important because "it defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims."
The court also stated it "undoubtedly has the authority to recognize a new tort cause of action, but this authority must be exercised responsibly...." Echoing arguments previously articulated by SHB - and citing a Missouri Law Review article by Victor Schwartz and Leah Lorber - the court summarized some of the policy problems that could occur from creating a new, full-blown tort cause of action. For instance, the court acknowledged that countless plaintiffs could come forward to recover monitoring costs, "effectively flooding the courts while concomitantly depleting the tortfeasor's resources for those who have actually sustained damage." "Moreover," the court added, "it is speculative at best, whether asymptomatic plaintiffs will ever contract a disease; allowing them to recover medical monitoring costs without first establishing physical injury would lead to the inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure."   MORE


Comments

Popular posts from this blog

1914 Germany Afrikaner farmer Agreement

thank you Etienne 
translated from Afrikaner to EnglishTo all the people of the white race all over the world, most of all to the German nation: This is an important agreement Concerning the South African Boer people and the German nation. It has to do with an agreement between the Boer rebellion and the German troops in Southwest Africa. The Boer rebellion were lead by leaders of the Afrikaaner nation (General Manie Maritz, General SG Maritz, General Koss Delarey) and who’ll be fought against the English in the Second Anglo-Boer war from 1899 to 1902, where the Afrikaaner nation under hun president In Paul Kruger ulcers completely humiliated by the English when ze ulcers forced to sign the Treaty of Vereeniging in 1902. The atrocities committed against the Boers in the Concentration camps ulcers horriffic to say the least, and at least 30 000 Boer women and Children Were driven from hun farms Which Were torched under Lord Kitchener’s Scorched Earth policies. The attached files are an ima…

MS-13 and Los Zetas Drug cartels stealing millions of barrels of oil and taking over control of the drug trade.

Los Zetas vs Ms 13 from lastcombat.com Los Zetas is an armed criminal gang that operates as a hired army for the Gulf Cartel. The group is believed to be led by Heriberto “The Executioner” Castanon. Los Zetas, the Ninth CartelTuesday, May 18, 2010 |  Borderland Beat Reporter Buggs

Major pedophile Somali-Muslim sex gang busted in Minnesota and Tennessee.

In a series of arrests carried out Monday morning in the Twin Cities and Nashville, Tennessee, federal and local authorities broke up a human trafficking ring that provided underage prostitutes. A federal indictment unsealed Monday morning in Nashville details the sex trafficking operations of 29 Somali men and women tied to the Somali Outlaws, Somali Mafia and Lady Outlaws gangs, which are all connected and based in Minneapolis. Of the 29 indicted, 12 were arrested Monday morning in the Twin Cities, eight in Nashville and six were already in jail in various locations. Three remain at-large and wanted.MORE

 FBI-2011 National Gang Threat Assessment 2011 National Gang Threat Assessment – Emerging Trends
view printable version (pdf) The gang estimates presented in the 2011 National Gang Threat Assessment (NGTA) represent the collection of data provided by the National Drug Intelligence Center (NDIC) through the National Drug Threat Survey, Bureau of Prisons, State Correctional Facilities, …