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June 28, 1995

DONALD L. SWEARINGEN, DEBORAH SWEARINGEN, h/w individually and as parents and natural guardians of their minor children, TAMMI SWEARINGEN and KYLE SWEARINGEN, Plaintiffs,

The opinion of the court was delivered by: NEAL P. MCCURN


 On March 28, 1995, the court heard oral argument with respect to several different motions in this case. At that time, the court expressed its concern that although the minor children, Tammi and Kyle Swearingen, are named as plaintiffs, along with their parents, Donald L. and Deborah Swearingen, the complaint in its present form does not contain any allegations specifically pertaining to damages purportedly sustained by those children. Basically, given their status as minors, the court had serious reservations about whether those children had sustained any legally cognizable injuries as to certain of the nine causes of action set forth in the complaint. In response to that inquiry, on April 5, 1995, plaintiffs filed the present motion to amend their complaint pursuant to Fed. R. Civ. P. 15(a).

 Plaintiffs' original memorandum submitted in support of that motion is not particularly enlightening. Initially it appeared that the plaintiffs were seeking to amend their complaint to add specific allegations pertaining to the minor children as to each of the nine causes of action alleged therein. In their amended reply memorandum, plaintiffs have clarified their position somewhat however. *fn1" It now appears, however, that plaintiffs are only seeking to amend their complaint as to some but not all of the causes of action currently alleged therein. More specifically, as best as the court is able to discern, plaintiffs are seeking amendment as to the trespass, nuisance, *fn2" and negligence *fn3" causes of action.


 I. Governing Legal Standard

 "Although Fed. R. Civ. P. 15(a) provides that leave to amend a complaint 'shall be freely given when justice so requires,'. . . , it is within the sound discretion of the district court whether to grant or deny leave to amend." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (citations omitted). "However, 'outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion.'" Scala v. Sequor Group, 1995 U.S. Dist. LEXIS 4969, 94 Civ. 0449, 1995 U.S. Dist. LEXIS 4969, at *15 (S.D.N.Y. April 14, 1995) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)). "'Undue delay and futility of the amendment, among other factors, are reasons to deny leave.'" Zahra, 48 F.3d at 685 (quoting John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994)). In addition, the Second Circuit has also opined that "'perhaps most importantly, the resulting prejudice to the moving party[]'" is also a factor to consider in deciding whether or not to allow an amendment. Russell v. Hilton Intl. of Puerto Rico, Inc., 93 Civ. 2552, 1995 U.S. Dist. LEXIS 5210, at *1 (S.D.N.Y. Apr. 19, 1995) (quoting Richardson Greenshields Sec., Inc. v. Mui-Hin Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987) (quoting in turn State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)). Insofar as futility is concerned, "if the proposed claims would be subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court should refuse to grant leave to amend, rather than granting leave and then awaiting a motion to dismiss." Scala, at *15 (citation omitted). With these general principles in mind the court has carefully considered the plaintiffs' motion to amend.

 In the present case, the defendants are claiming only that the proposed amendment should not be allowed because it would be futile. Therefore, the court will concentrate on that futility argument before briefly considering the claimed procedural irregularities, including plaintiffs' seeming delay in bringing this motion.

 II. Futility

 A. Negligence/Gross Negligence

 Insofar as plaintiffs' negligence causes of action are concerned, the defendants contend that the minor children have not sustained any damages which were proximately caused by defendants' breach of duty owed to those plaintiffs. Thus, it would be futile to amend the complaint in that regard, because plainly such a showing is essential to recover on a theory of negligence. See Waldron v. Rotzler, 862 F. Supp. 763, 772-773 (N.D.N.Y. 1994) (citation omitted) (enumerating four elements essential to a prima facie showing of negligence: (1) duty owed by defendant to plaintiff; (2) breach of that duty; (3) injury by plaintiff; and (4) cause of plaintiff's injury was the defendant's breach of that duty). More specifically, the defendants contend that "the risk or probability of sustaining damages is not sufficient to maintain a negligence cause of action in New York State." Defendants' Opposition Memorandum at 6. It is difficult to discern from plaintiffs' amended reply memorandum exactly what they are arguing in this respect. They appear to be asserting, however, that the minor children should be allowed to explicitly allege negligence causes of action because although they do not manifest any physical injury at this time, due to alleged exposure to tetraachloroethylene (perchloroethylene) ("TCE"), they may in the future. Plaintiffs also seem to be asserting that the minor children should be allowed to amend their complaint as to the negligence causes of action because they have a heightened fear of developing cancer in the future. In that regard, the minor children apparently want to assert a claim to recover for future expenses for medical monitoring. Finally, plaintiffs respond that the injuries to the minor children are not "contingent, speculative or merely possible," and thus they should be allowed to amend their complaint to specifically include negligence claims on behalf of those children. Plaintiff's Amended Reply Memorandum at 4 (citing Askey v. Occidental Chem. Corp., 102 A.D.2d 130, , 477 N.Y.S.2d 242, 247 (4th Dep't 1984)).

 Acknowledging that "the proof problems are, of course, formidable[,]" the Fourth Department in Askey permitted recovery, as consequential damages, of future expenses for medical monitoring resulting from exposure to toxic chemicals which emanated from a landfill. Id. The Askey court "held that plaintiffs who have been exposed to toxic substances had a claim for injuries not yet present, but restricted the rule to cases where the 'probability of their occurrence [amounted to] a reasonable certainty.'" Penny v. United Fruit Co., 869 F. Supp. 122, 127 (E.D.N.Y. 1994) (quoting Askey, 477 N.Y.S.2d at 247)). More particularly, the court explicitly stated that "damages for the prospective consequences of a tortious injury are recoverable only if the prospective consequences may with reasonable probability be expected to flow from the past harm." Askey, 477 N.Y.S.2d at 247 (emphasis added). Thus, "if 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." Id. (citation omitted). In a later case Judge Freeman recognized that "'to meet this reasonably certain standard, courts have generally required plaintiffs to prove that it is more likely than not (a greater than 50% chance) that the expected consequences will occur.'" Penny, 869 F. Supp. at 127 (quoting Fusaro v. Porter-Hayden Co., 145 Misc. 2d 911, 548 N.Y.S.2d 856, 859 (Sup.Ct. N.Y. County 1989) (quoting in turn Wilson v. Johns-Manville Sales Corp., 221 U.S. App. D.C. 337, 684 F.2d 111, 119 (D.C.Cir. 1982)).

 Applying the teachings of Askey to the present case, plaintiffs cannot be allowed to amend their complaint to include negligence claims, either gross or ordinary, on behalf of the minor children because the present record falls far short of the standards articulated in Askey. First of all, the record is ambiguous as to which of the two children allegedly sustained damages purportedly as a result of exposure to TCE. A report clearly labeled "DRAFT," evidently prepared by Willaim R. Sawyer, Ph.D., a toxicologist, submitted by the plaintiffs in conjunction with this motion, refers to "twelve year old Kyle Swearingen," and then in that same sentence Sawyer refers to " her relatively small body weight ratio." Affirmation of Mark David Blum, exh. 1 thereto at 6 (emphasis added). Earlier in that same document, Dr. Sawyer describes "Kyle Swearingen [as] a 12 year old female, daughter of Mr. and Mrs. Swearingen[.]" Id. at 4. It appears to the court that perhaps Dr. Sawyer is confusing Kyle and Tammi Swearingen. The court assumes that Kyle is a male and that Tammi is a female. Thus, presumably Dr. Sawyer intended to refer to Tammi rather than Kyle Swearingen in both of these statements. Irrespective of which child Dr. Sawyer was referring to in that document, there is no specific mention of any injuries sustained, ...

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