Independent Cause of Action for Medical Monitoring Not in the "New York State of Mind"
By Diane Fleming Averell and Eric L. Probst
Courts across the country have long grappled with awarding medical monitoring as a remedy in toxic tort claims brought by asymptomatic plaintiffs who might develop a disease due to their alleged exposure. Despite the absence of a present physical injury, some courts have awarded medical monitoring expenses as part of consequential damages where plaintiffs meet their burden of proof under a traditional theory of liability, such as strict liability or negligence. Other courts have been less willing to award this remedy where plaintiffs allege no physical injuries and thus cannot sustain a prima facie case in tort.