they failed to present any clinical evidence of PCB contamination, and they therefore had not shown a rational basis for their fear of developing any PCB-caused disease.
Abusio is not controlling, however. First of all, it should be noted that Abusio was decided after a full jury trial. Despite the court's reference to "clinically demonstrable presence" of contaminants, then, it is evident that the court simply believed that mere exposure to a toxic substance, without more, was insufficient to sustain a verdict in the plaintiffs' favor. Such a holding would not be inconsistent with Askey's "reasonable medical certainty" standard.
In addition, to the extent that Abusio can be read as requiring proof that contaminants are present in the plaintiff's body, I am not convinced that such a holding represents the prevailing law on the subject. For one thing, the cases cited by the Second Department in support of that statement did not involve claims for medical monitoring costs at all, but claims seeking damages for emotional distress arising from fear of contracting a disease in the future as a result of the plaintiffs' exposure to a toxic substance. The burden of proof should be higher for such an emotional distress claim than for a medical monitoring claim. Exposure to a toxic substance might in some instances be enough to make medical monitoring advisable, but not enough to provide a rational basis for a fear that is severe enough to cause the plaintiff compensable emotional distress. Moreover, there could be cases in which the plaintiff cannot prove that a certain substance is present in his body, but could nevertheless present expert medical testimony that the plaintiff's exposure to that substance warrants future medical monitoring.
I therefore agree with Judge John Curtin's assessment, in a similar case in this district, that " Askey accurately represents a growing national acceptance of ... a claim [for medical monitoring], and would be embraced by the New York Court of Appeals". Gibbs v. E.I. DuPont de Nemours & Co., 876 F. Supp. 475, 478-79 (W.D.N.Y. 1995). See also Metro-North Commuter R.R. Co. v. Buckley, U.S. , 138 L. Ed. 2d 560, 117 S. Ct. 2113, 2122-24 (1997) (noting state-law cases authorizing recovery for medical monitoring in the absence of physical injury, albeit with some limitations on the remedy); Jones v. Utilities Painting Corp., 198 A.D.2d 268, 603 N.Y.S.2d 546 (2d Dep't 1993) (assuming that a cause of action to recover damages for future medical monitoring costs is viable, plaintiff must "specifically allege actual exposure to asbestos, at toxic levels").
As the court stated in Askey, plaintiff's burden of proof will be heavy, and if he is unable to establish the presence of asbestos in his body, he may be unable to show to a reasonable degree of medical certainty that he needs medical monitoring. In this case, there has been no discovery and, therefore, there is no medical evidence at all on this issue.
Furthermore, the parties also dispute the extent to which plaintiff was exposed to asbestos in the first place. If plaintiff's allegation that he was "showered" with asbestos is true, it may be unnecessary for him to prove that there is asbestos in his body, provided that he adduces sufficient medical evidence that such a high level of exposure to asbestos makes medical monitoring reasonably necessary. Since plaintiff's allegations are sufficient to meet the standard set forth in Askey, dismissal of his claim for medical monitoring costs would therefore be premature at this stage.
IV. Motions to Strike
General Signal has moved to strike portions of plaintiff's May 9, 1997 affidavit, and plaintiff has moved to strike portions of the affidavits of Mark Ocwieja and Todd Young, which General Signal submitted in support of its summary judgment motion. These motions, however, are relevant only insofar as they relate to whether the challenged portions of these affidavits should be considered in determining the summary judgment motions. Even leaving aside these statements, though, I believe that summary judgment would be premature in this case, so the motions to strike are effectively moot at this point, and, therefore, the motions are dismissed.
Defendant General Signal Corporation's motion for summary judgment (Item 5) is denied as moot. Its motion for summary judgment and to strike portions of plaintiff's affidavit (Item 21) is denied without prejudice.
Defendant Robert F. Hyland & Sons, Inc.'s motion for summary judgment (Item 13) is denied without prejudice.
Plaintiff's cross motions for summary judgment on the issue of liability on his first cause of action (Items 15 and 20), are denied without prejudice. Plaintiff's motion to strike portions of the affidavits of Mark Ocwieja and Todd Young, and in the alternative for a continuance of defendants' motions for summary judgment (Item 29) is denied.
Defendant, General Signal Corporation, is directed to answer within the time established by the Federal Rules of Civil Procedure.
Pursuant to 28 U.S.C. 636(b)(1)(A) and (B), all pre-trial matters in this case are referred to United States Magistrate Judge Jonathan W. Feldman, including but not limited to (1) conduct of a scheduling conference and entry of a scheduling order pursuant to Rule 16 Fed. R. Civ. P, (2) hearing and disposition of all non-dispositive motions or applications, (3) supervision of discovery, and (4) supervision of all procedural matters involving the aforementioned or involving the preparation of the case or any matter therein for consideration by the District Judge.
The Magistrate Judge // shall /[checkmark]/ shall not also hear and report upon dispositive motions, for the consideration of the District Judge pursuant to 28 U.S.C. 636(b)(1)(B)-(C).
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
November 7, 1997.
© 1992-2004 VersusLaw Inc.