Defendant International Business Machines Corporation ("IBM") moves for an order [*2]granting summary judgment pursuant to CPLR § 3212 in favor of IBM on plaintiffs' claims for medical monitoring damages asserted by six of the seven trial plaintiffs.^[FN1]

The court heard oral argument between July 9, 2012 and July 18, 2012 on eleven IBM motions. Today, the court has issued five separate Decisions resolving only those motions dealing with legal issues which are referred to, in sequence, as: (1) Negligence; (2) Nuisance; (3) Trespass; (4) Other Chemicals/Other Locations; and (5) Medical Monitoring. This Decision is the fifth in the sequence of decisions issued today. The court has reserved decision on the remaining motions addressing the testimony of various plaintiffs' experts until after the court holds Frye/Parker hearings thereon.

Medical monitoring discussions are generally divided into three categories, namely: (1) as a stand alone cause of action; (2) as part of a fear of disease claim; or (3) as an element of consequential damages arising from a negligence cause of action.

Plaintiffs clarified at oral argument that they are not asserting a stand alone cause of action for medical monitoring nor medical monitoring damages relating to a fear of disease claim (Transcript [Medical Monitoring], pp 4-5). Thus, plaintiffs' only potential recovery for medical monitoring expenses is based on the third category addressing the theory of medical monitoring as an element of consequential damages to their negligence, nuisance and trespass causes of action.

1.Negligence

Six of the seven trial plaintiffs (Grace Odom, James Odom, Tami Ivory Azouri, Thomas P. Ivory, Timothy Ivory, and Shawn Ivory Stevens), referred to as the asymptomatic plaintiffs,

seek medical monitoring expenses as a form of consequential damages flowing from their negligence causes of action based strictly upon an increased risk of disease.^[FN2] However, none of the asymptomatic plaintiffs suffer from any existing disease.^[FN3] [*3]

Today, the court has issued a Decision on negligence which has two key findings that are relevant to this medical monitoring discussion, namely: (1) this court's determination that an increased risk of disease is not a cognizable injury sufficient to support a tort cause of action in New York; and (2) that even if New York did recognize an increased risk of disease as an injury sufficient to sustain a negligence cause of action, plaintiffs' asserted risk levels are too low to be actionable. In said Decision, this court granted IBM's motion for summary judgment dismissing the negligence claims of the asymptomatic plaintiffs Thomas P. Ivory, Timothy Ivory, Shawn Ivory Stevens, Tami Lynn Ivory Azouri, Grace Odom, and James Odom.^[FN4] Thus, in view of said Decision on negligence, the six asymptomatic plaintiffs no longer have a negligence claim based upon increased risk of disease from which they could claim medical monitoring damages.

2.Nuisance & Trespass

Certain trial plaintiffs also seek to recover medical monitoring expenses as a form of consequential damages flowing from their nuisance and trespass causes of action.

Today, the court has issued a Decision on nuisance which granted IBM's motion for summary judgment dismissing the private nuisance claim of James Odom based upon lack of standing, but denied the remainder of the motion. Thus, out of the four trial plaintiffs originally asserting private nuisance causes of action (Thomas H. Ivory, Shawn Ivory Stevens, Grace Odom and James Odom), there are three surviving nuisance claims belonging to Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom. These three plaintiffs assert they are entitled to medical monitoring damages, among other damages, arising from their nuisance claims.

Also today, the court has issued a Decision on trespass which granted IBM's motion for summary judgment dismissing the trespass claims of Thomas P. Ivory, Timothy Ivory, Tami Lynn Ivory Azouri and James Odom on stipulation, but denied the motion with respect to Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom. Thus, out of the trial plaintiffs originally asserting a trespass cause of action, there are three surviving trespass claims belonging to Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom. These three plaintiffs assert they are entitled to medical monitoring damages, among other damages, arising from their trespass claims.

3.Summary

Consequently, after the court's issuance today of the negligence, nuisance, and trespass decisions, only three trial plaintiffs (Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom) have any remaining claims (nuisance and trespass claims) on which there is any legal basis to even argue entitlement to medical monitoring damages. While the following analysis should be viewed in that context, the majority of the parties' arguments are intertwined with and arise from plaintiffs' allegations of an increased risk of disease (now dismissed) and, as such, will remain a [*4]part of the discussion.^[FN5]

Generally, a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by producing evidentiary proof that demonstrates the absence of any material issue of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the moving party meets said burden, then the burden shifts to the opposing party to present evidentiary proof in admissible form that demonstrates the existence of a factual issue (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

IBM raises seven arguments in support of its motion for summary judgment dismissing plaintiffs' claims for medical monitoring damages including: (1) no present injury; (2) increased risk is insufficient; (3) no likelihood of future disease; (4) potential future medical monitoring costs driven only by potential jury award; (5) even if such damages were available the claims are time-barred; (6) plaintiffs' expert, Patricia Meinhardt's methodology is flawed; and (7) three plaintiffs do not satisfy their own expert's criteria for recovery.^[FN6]

In opposition, plaintiffs assert that New York does recognize claims for medical monitoring damages if a plaintiff demonstrates exposures that arose from defendant's misconduct that have created an elevated risk of serious latent disease, along with the existence of beneficial monitoring procedures. Additionally, plaintiffs argue that their experts have established to a reasonable degree of scientific certainty that the asymptomatic plaintiffs are at significant increased risk of illnesses due to their extensive exposure to TCE from IBM's Endicott Facility (Plaintiffs' Memorandum of Law [Medical Monitoring], pp 2-3).

Plaintiffs' claims for medical monitoring damages are based upon a limited number of New York cases including, among others, Baity v General Elec. Co., 86 AD3d 948 (4th Dept 2011), Askey v Occidental Chem. Corp., 102 AD2d 130 (4th Dept 1984), and Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 300-301 (1936). The parties take sharply divergent views of these cases and how they apply to the case at hand. The court has considered all the [*5]arguments and finds that it is guided by Askey and Baity.^[FN7] However, that is not to say that this court accepts plaintiffs' interpretation of Baity and/or Askey.

In Askey, the Fourth Department stated, in dicta, that "[t]he theory of liability grows out of the invasion of the body by the foreign substance, with the assumption being that the substance acts immediately upon the body setting in motion the forces which eventually result in disease [citation omitted]" (Askey, 102 AD2d at 136 [emphasis added]). Thereafter, "[t]he defendant is liable for 'reasonably anticipated' consequential damages which may flow later from that invasion although the invasion itself is 'an injury too slight to be noticed at the time it is inflicted'" (Id. at 136, quoting Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 300-301 [1936]). The Fourth Department also stated that "[i]f a plaintiff seeks future medical expenses as an element of consequential damage, he must establish with a degree of reasonable medical certainty through expert testimony that such expenses will be incurred [citation omitted]" (Askey, 102 AD2d at 137 [emphasis added]).

Almost 30 years later, the Fourth Department issued Baity v General Elec. Co., 86 AD3d 948 (4th Dept 2011), lv denied 87 AD3d 1416 (4th Dept 2011), relying on the dicta language from Askey.^[FN8] In Baity, the Fourth Department stated that in order to establish entitlement to judgment as a matter of law dismissing the claims for medical monitoring costs, a "[d]efendant was required to '[e]stablish with a degree of reasonable medical certainty through expert testimony...that such expenditures are [not] 'reasonably anticipated' to be incurred by reason of [plaintiffs'] exposure to TCE (Askey, 102 AD2d at 137)" (Baity, 86 AD3d at 950 [emphasis added]).

According to plaintiffs, Askey and Baity only require that there be a reasonable certainty that the medical monitoring expenses will be incurred without regard to the degree of likelihood that the exposure will lead to disease. This court rejects that interpretation. Plaintiffs would have this court read the above quoted phrase from Baity out of context from the remaining [*6]portions of the decision to mean that it is the expenditures that must be reasonably certain, not the disease itself.In this court's view, the Baity court was analyzing the Askey decision based upon the underlying concept that the invasion of the foreign substance set in motion forces "which will eventually result in disease". Stated another way, both Askey and Baity were addressing medical monitoring expenses in light of the reasonable degree of probability of contracting the disease at issue. Obviously, the reasonable certainty of the expenses themselves must flow from the reasonable certainty of the disease in the first instance. Otherwise, in this court's view, to simply ignore a plaintiff's chances of actually becoming sick would make medical monitoring damages available for the asking and akin to a fear of disease claim without the attendant safeguards of genuineness and certainty required in said claims.

Thus, plaintiffs' demands for medical monitoring damages - be they in connection with negligence, nuisance, or trespass - must be viewed in the context of plaintiffs' chances of getting cancer.^[FN9] The term "reasonable certainty" is generally accepted to mean more likely than not - greater than a 50% chance - that the risk will occur or, stated another way, a statistical likelihood that the disease will result (Bossio v Fiorillo, 210 AD2d 836, 838 [3rd Dept 1994]; Doner v Adams Contr., 208 AD2d 1072 [3rd Dept 1994]; Fusaro v Porter-Hayden Co., 145 Misc 2d 911, 916-917 [New York County 1989], affd 170 AD2d 239 [1st Dept 1991]; Swearingen v Long, 889 F Supp 587, 590 [NDNY 1995]).

Plaintiffs' proffered expert on this point is William R. Sawyer, PhD, who opines that plaintiffs' lifetime excess cancer risks from TCE exposure from the Endicott Facility range from .00263% (for Tami Azouri) to .00607% (Timothy Ivory) (IBM Ex 18). Even accepting plaintiffs' expert proof on this point without question, plaintiffs' proof is clearly lacking. In this court's view, there is simply no conceivable interpretation that .00607% or six thousandths of one percent increased risk of cancer rises to the level of demonstrating a likelihood or reasonable certainty of plaintiffs developing a future disease based upon their TCE exposure. In sum, the court agrees with IBM that plaintiffs cannot satisfy Askey and Baity on their own terms.

Parenthetically, the court notes that even if it had agreed with plaintiffs' argument that it is a reasonable certainty of the expenses themselves, not the disease, that is at issue, plaintiffs' proof fails in this regard as well. For example, none of the plaintiffs have incurred any medical monitoring expense in the nine years since first becoming aware of their alleged increased risk in 2003. No physician has advised them to get medical monitoring or recommended any tests and only a few of the plaintiffs have even discussed the subject with a physician. Finally, each of the plaintiffs have acknowledged that they will not pursue medical monitoring unless and until a jury awards them money (IBM Memorandum of Law [Medical Monitoring], pp 6-7). Thus, plaintiffs have not established that there is a reasonable certainty that the medical monitoring expenses will [*7]be incurred.

In view of the foregoing, defendant IBM's motion for summary judgment dismissing plaintiffs' claims for medical monitoring damages relating to all causes of action is granted.

The court has considered the parties' remaining arguments on this motion and finds them to be without merit.

This constitutes the Decision of the court.

Pursuant to an agreement between the parties outlined to the court in a telephone conference held November 2, 2012, no orders shall issue or be filed in connection with this Decision until after the parties have conferred and submitted a proposed order or orders to the court, with any disputes about such proposed orders to be resolved by the court at a conference to be convened on or about December 12, 2012.

Dated:November 15, 2012

Binghamton, New York

s/ Ferris D. LebousHon. Ferris D. Lebous

Justice, Supreme Court