NY State Senate Bill 2023-S528

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to environmental conservation
Jan 04, 2023	referred to environmental conservation

co-Sponsors

2023-S528 (ACTIVE) - Details

Current Committee:: Senate Environmental Conservation
Law Section:: Environmental Conservation Law
Laws Affected:: Add §37-0116, En Con L; add §214-k, CPLR
Versions Introduced in Other Legislative Sessions:: 2019-2020: S8145
2021-2022: S298
2025-2026: S7474

2023-S528 (ACTIVE) - Summary

Establishes a cause of action for medical monitoring for a person with or without a present injury or disease; establishes a statute of limitation for such cause of action.

2023-S528 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S528

SPONSOR: THOMAS
 
TITLE OF BILL:

An act to amend the environmental conservation law and the civil prac-
tice law and rules, in relation to establishing a cause of action for
medical monitoring

 
PURPOSE OR GENERAL IDEA OF BILL:

To create an independent cause of action for medical monitoring.

 
SUMMARY OF PROVISIONS:

Section one amends the environmental conservation law to create an inde-
pendent cause of action for medical monitoring. The elements of a
medical monitoring cause of action are:

1) the plaintiff's exposure to the toxic substance was due to unauthor-
ized release of a toxic substance by the defendant;

2) there is a probable link between exposure to the toxic substance and
the latent disease;

3) exposure to the toxic substance increased the plaintiff's risk of
developing the latent disease;

4) diagnostic testing is reasonably necessary; and

5) medical tests or procedures exist to detect the latent disease.

Section two amends the civil practice law and rules to allow plaintiffs
to bring a cause of action for medical monitoring within three years of
discovery of the injury or within one year of the effective date of this
article.

Section three is the effective date.

 
JUSTIFICATION:

Across the country, courts have wrestled with awarding medical monitor-
ing as a remedy in toxic tort claims brought by asymptomatic plaintiffs
who might later develop injuries caused by exposure to toxic substances.

New York's Appellate court did not address the issue for a long time
leaving lower courts to disagree on whether New York should recognize
no-injury medical monitoring. This created three divergent lines of case
law. Some courts recognized or upheld medical monitoring claims despite
the fact that the plaintiff had not yet suffered a physical injury, and
may never. Others required a "clinically-demonstrable presence of a
toxin in the plaintiff's body, or some other indication of a toxin-in-
duced disease" or rejected outright an independent claim for medical
monitoring.

When the Appellate Court finally reviewed medical monitoring in Caronia
v. Philip Morris USA, Inc. it ruled that New York does not recognize an
independent medical monitoring cause of action. 2013 N.Y. LEXIS 3476,
2013 N.Y. Slip. Op. 8372. The Caronia majority decided that defendant
resources were best committed to paying individuals with actual injuries
instead of diverting costs to paying for monitoring. The dissenting
minority responded: "Where, as here, it is within the Court's power to
provide a vehicle for plaintiffs to seek equitable relief capable of
forestalling profound suffering and death, judicial hesitance and legis-
lative deference only serve to thwart the ends of justice."

This bill would allow individuals to seek the costs of periodic, future
medical examinations intended to facilitate early diagnosis and treat-
ment of latent injuries or diseases caused by exposure to toxic
substances.

 
PRIOR LEGISLATIVE HISTORY:

2021-22: S.298 (Thomas) / A.2265 (Niou) - Referred to Environmental
Conservation.

2019-20: S.8145 (Thomas) / A.10762 Rules (Niou) - - Referred to Environ-
mental Conservation.

 
FISCAL IMPLICATIONS:

None noted to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S528 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    528
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2023
                                ___________
 
 Introduced  by  Sens. THOMAS, MAY -- read twice and ordered printed, and
   when printed to be committed to the Committee on Environmental Conser-
   vation
 
 AN ACT to amend the environmental conservation law and the  civil  prac-
   tice  law and rules, in relation to establishing a cause of action for
   medical monitoring

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The environmental conservation law is amended by adding a
 new section 37-0116 to read as follows:
 § 37-0116. CAUSE OF ACTION FOR MEDICAL MONITORING.
   1. FOR THE PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
 FOLLOWING MEANINGS:
   (A) "EXPOSURE" SHALL HAVE THE SAME MEANING SET FORTH  IN  SECTION  TWO
 HUNDRED FOURTEEN-C OF THE CIVIL PRACTICE LAW AND RULES.
   (B) "TOXIC SUBSTANCE" SHALL MEAN:
   (I)  ANY  CHEMICAL  OR BIOLOGICAL SUBSTANCE THAT POSES A RISK TO HUMAN
 HEALTH AS DEFINED BY THE COMMISSIONER PURSUANT  TO  SECTION  37-0103  OF
 THIS TITLE;
   (II)  ANY  SUBSTANCE  CATEGORIZED  AS TOXIC OR HAZARDOUS BY THE UNITED
 STATES ENVIRONMENTAL PROTECTION AGENCY OR THE UNITED STATES  AGENCY  FOR
 TOXIC  SUBSTANCE  AND  DISEASE  REGISTRY  SHALL  BE A HAZARDOUS OR TOXIC
 SUBSTANCE; AND
   (III) ANY SUBSTANCE NOT SO CHARACTERIZED MAY BE PROVEN TO BE TOXIC  BY
 A PREPONDERANCE OF THE EVIDENCE.
   (C)  "RELEASE"  SHALL MEAN ANY INTENTIONAL OR UNINTENTIONAL, PERMITTED
 OR UNPERMITTED, ACT OR OMISSION THAT ALLOWS A TOXIC SUBSTANCE  TO  ENTER
 THE  AIR, LAND, SURFACE WATER, GROUNDWATER, OR ANY OTHER PLACE WHERE THE
 TOXIC SUBSTANCE MAY BE LOCATED.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01858-01-3
 S. 528                              2

   (D) "MEDICAL MONITORING" SHALL MEAN A PROGRAM OF MEDICAL SURVEILLANCE,
 INCLUDING MEDICAL TESTS OR PROCEDURES FOR THE PURPOSE OF EARLY DETECTION
 OF SIGNS OR SYMPTOMS OF LATENT DISEASE RESULTING FROM EXPOSURE.
   (E)  "LATENT DISEASE" SHALL MEAN ANY CONDITION THAT NEGATIVELY AFFECTS
 HUMAN HEALTH BY CAUSING DEATH OR PERMANENT OR PROTRACTED LOSS OF  MENTAL
 OR  PHYSICAL  FUNCTION WHICH A PERSON HAS A SIGNIFICANTLY INCREASED RISK
 OF CONTRACTING.
   (F) "REASONABLY NECESSARY" SHALL MEAN THE STANDARD WHEREBY A PHYSICIAN
 WOULD PRESCRIBE TESTING FOR THE PURPOSE OF DETECTING OR  MONITORING  THE
 LATENT DISEASE.
   (G) "PERSON" SHALL MEAN AN INDIVIDUAL, FIRM, CORPORATION, ASSOCIATION,
 PARTNERSHIP,  CONSORTIUM,  JOINT  VENTURE,  COMMERCIAL  ENTITY,  FEDERAL
 GOVERNMENT, STATE, MUNICIPALITY, COMMISSION, POLITICAL  SUBDIVISION,  OR
 ANY INTERSTATE BODY.
   2.  A  PERSON WITH OR WITHOUT A PRESENT INJURY OR DISEASE SHALL HAVE A
 CAUSE OF ACTION FOR MEDICAL MONITORING  DAMAGES  AGAINST  A  PERSON  WHO
 RELEASED A TOXIC SUBSTANCE IF ALL OF THE FOLLOWING ARE DEMONSTRATED BY A
 PREPONDERANCE OF THE EVIDENCE:
   (A)  THE  PERSON  MAY  HAVE  BEEN  EXPOSED TO THE TOXIC SUBSTANCE AS A
 RESULT OF THE UNAUTHORIZED RELEASE BY THE PERSON WHO RELEASED THE  TOXIC
 SUBSTANCE;
   (B)  THERE  IS A PROBABLE LINK BETWEEN EXPOSURE TO THE TOXIC SUBSTANCE
 AND A LATENT DISEASE;
   (C) THE PERSON'S EXPOSURE TO THE TOXIC SUBSTANCE INCREASES THE RISK OF
 DEVELOPING THE LATENT DISEASE, PROVIDED THAT SUCH PERSON  SHALL  NOT  BE
 REQUIRED TO PROVE THAT THE LATENT DISEASE IS CERTAIN OR LIKELY TO DEVEL-
 OP AS A RESULT OF THE EXPOSURE;
   (D) DIAGNOSTIC TESTING IS REASONABLY NECESSARY; AND
   (E) MEDICAL TESTS OR PROCEDURES EXIST TO DETECT THE LATENT DISEASE.
   3.  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PRECLUDE THE PURSUIT
 OF ANY OTHER CIVIL OR  INJUNCTIVE  REMEDY  AVAILABLE  UNDER  STATUTE  OR
 COMMON  LAW,  INCLUDING  THE  RIGHT OF ANY PERSON TO RECOVER FOR DAMAGES
 RELATED TO THE MANIFESTATION OF A LATENT DISEASE.  THE REMEDIES IN  THIS
 SECTION  ARE  IN  ADDITION  TO  THOSE  PROVIDED BY EXISTING STATUTORY OR
 COMMON LAW.
   4. THIS SECTION DOES NOT PRECLUDE A  COURT  FROM  CERTIFYING  A  CLASS
 ACTION FOR MEDICAL MONITORING DAMAGES.
   §  2.  The  civil  practice  law  and rules is amended by adding a new
 section 214-k to read as follows:
   § 214-K. CAUSE OF ACTION FOR MEDICAL MONITORING.  NOTWITHSTANDING  ANY
 PROVISION OF LAW TO THE CONTRARY, A CAUSE OF ACTION FOR MEDICAL MONITOR-
 ING  PURSUANT  TO SECTION 37-0116 OF THE ENVIRONMENTAL CONSERVATION LAW,
 MAY BE COMMENCED BY THE PLAINTIFF WITHIN THE PERIOD ALLOWED PURSUANT  TO
 SECTION TWO HUNDRED FOURTEEN-C OF THIS ARTICLE OR WITHIN ONE YEAR OF THE
 EFFECTIVE DATE OF THIS SECTION.
   § 3. This act shall take effect immediately.

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Senate Bill S528

Sponsored By

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

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co-Sponsors

2023-S528 (ACTIVE) - Details

2023-S528 (ACTIVE) - Summary

2023-S528 (ACTIVE) - Sponsor Memo

2023-S528 (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Kevin Thomas

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

Actions

co-Sponsors

Rachel May

2023-S528 (ACTIVE) - Details

2023-S528 (ACTIVE) - Summary

2023-S528 (ACTIVE) - Sponsor Memo

2023-S528 (ACTIVE) - Bill Text download pdf

Comments