The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM DECISION and ORDER
Defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs oppose. Oral argument was heard on June 27, 2006, in Utica, New York.
Plaintiffs have alleged facts in their complaint which, if true,*fn1 are sufficient to avoid dismissal on the basis of the Statute of Limitations or on the other grounds set forth in the motions. The motions will be denied without prejudice.
The motions to dismiss the Navigation Law claim for personal injuries and the Medical Monitoring claim will also be denied without prejudice. It would be premature to rule at this time. The New York Court of Appeals has not ruled on the viability of a personal injury claim under the Navigation Law or a Medical Monitoring claim. Further developments may clarify the situation in order to make a prediction as to the highest court's ruling on the issues.
In fact there may even be a definitive ruling on one or both issues. Finally, there is no prejudice to the defendants in allowing these claims to proceed at the present time.
The plaintiffs allege that "This is a class action brought by individual Mohawk Indians to recover money damages for personal injuries they have sustained and are at risk of sustaining as a result of their exposure to polychlorinated biphenyls ("PCBs") disposed of by defendants." (See Compl. ¶ 1.) A motion to certify the class pursuant to Fed. R. Civ. P. 23 has not been made.
However, in order to clarify the Statute of Limitations issues and the nature of any proposed class, the plaintiffs' attorneys are placed on notice that they must be prepared to furnish the following information as to each individual plaintiff and/or proposed class member:
3. Approximate date of first exposure to PCBs disposed of by defendants;
4. Date first test revealed the presence of elevated PCBs in body;
5. Date of first medical treatment for the personal injuries claimed; and
6. Approximate date of the appearance of the first symptoms of the personal injuries claimed.
Any individual for whom the above information is not provided is at risk of being dismissed from the action and/or precluded from ...