November 14, 2008
In the field of toxic torts, a person who is exposed to a dangerous substance may not develop symptoms of an injury or illness until years after the exposure. As a consequence, a claim is sometimes brought for what is known as “medical monitoring”. Such a claim seeks compensation for the costs of future medical examinations or tests reasonably intended to detect the onset of latent injuries or diseases caused by the exposure to toxic substances, which the claimant does not presently have but is at an increased risk of contracting in the future.
Medical monitoring may include a claim for future diagnostic tests and studies, used to timely detect and treat cancers and other diseases, preventative care, and therapy for those actually stricken with an illness.
Not all states recognize medical monitoring claims. In others, a perceived absence of clear recognition of medical monitoring claims leads defendants to challenge the rights of plaintiffs to bring them at all.
Recently, in the United States District Court for the Eastern District of New York, a judge addressed such an argument, and ruled that medical monitoring based on toxic exposure stands as an independent cause of action. Judge Arthur D. Spatt in Sorrentino v. ASN Roosevelt Center (September 29, 2008), denied a landlord’s motion to dismiss a class action complaint brought by former tenants of a luxury apartment complex located in Westbury, New York. These tenants had been notified by their landlord that they would have to vacate their premises because water intrusion and mold had been found within spaces between the walls in the Westbury Complex. The tenants needed to vacate the premises in order to do reconstruction work.
In their complaint, the tenants disputed whether their leases had been appropriately terminated. In addition, the tenants added claims for medical monitoring and violation of New York. General Business Law §349.
The landlord moved to dismiss the cause of action for medical monitoring contending that the New York Court of Appeals has never recognized an independent cause of action for medical monitoring, and that such a claim may only be asserted in the form of a remedy. Further, the landlord argued that even if a cause of action for medical monitoring could be maintained, the tenants had failed to allege an actionable toxic exposure.
The tenants had alleged in their complaint that the landlord caused all potential class members reasonable apprehension of a serious illness attributable to living in apartments infested with mold and/or elevated levels of bacteria. Further, the tenants claimed that as a direct and proximate result of the negligence of the defendants, they would need ongoing diagnostic, curative and preventative medical care because of their potential exposure to toxic mold.
Judge Spatt determined that “[a]lthough the New York Court of Appeals has never expressly recognized an independent cause of action for medical monitoring, the Court disagrees with the defendants’ contention that the courts of the Appellate Division have not done so.” Judge Spatt added that “the federal courts in this district have found that ‘in cases involving exposure to toxic materials, the New York Court of Appeals would recognize an independent cause of action for medical monitoring.’ Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 538 (S.D.N.Y. 2007) (collecting cases arriving at the same conclusion).”
Further, the Court found that the tenants had properly alleged an actionable exposure to a toxic substance by establishing both exposure to the disease-causing agent and that there was a “rational basis” for their fear of contracting the disease. Citing to New York authority, the Court stated that this “rational basis” has been construed to mean the clinically demonstrable presence of the toxic substance in the plaintiff’s body, or some indication of toxin-induced disease, i.e., some physical manifestation of toxic contamination. The landlord did not dispute that exposure to mold can result in serious health effects. Further, the Amended Complaint contained sufficient allegations that the mold caused by water-infiltration was detected in and around the occupied spaces in the Westbury Complex. Finally, the tenants alleged that at least some of those exposed to the conditions at the Westbury Complex have developed exposure-related health conditions. Accordingly, the Court found that the tenants had stated a rational basis for exposure to a disease-causing agent and there was a rational basis for their fear of contracting the disease. Therefore, the Court denied the motion to dismiss the medical monitoring claim.
The tenants’ case will now proceed into what is known as the “discovery” phase of litigation, in which the parties have the opportunity to investigate the facts supporting the claims and defenses at issue.
By Nicholas Papain, Esq. New York Personal Injury Lawyer concentrates his practice in personal injury, negligence, premises liability, and products liability litigation.
I posted the story about this case in June and as I said then these tenants in a higher end complex and a higher income level will have their rights protected as they should. It helps that they are obviously not dealing with a notorious, unethical landlord. Their attorney seems to be working for them and not the defendant. It also seems there wasn’t corruption in court and the Judge acted like the intelligent, professional Judge he is supposed to be. And I guess there is no mold inspection report and a state agency that ignored it and all the corruption that goes with that.
Other than that, the actual case we have is similar but playing out very differently.
I have to say I was a little upset when I read this update. I am sick right now and not from my own choosing and getting worse every week – the baby has asthma now and has had pneumonia several times – my daughter is constantly sick – and yet we can’t get the medical treatment needed because the responsible party that knowingly exposed us to a tremendous amount of mold is a huge unethical, greedy, affordable housing mafia king slumlord – Riverstone Residential – who can threaten or use who they know – to keep from being accountable for what they owe us for medical care that we would not need if it were not for them.
We are caught up in a nightmare of corruption. Our health has been seriously affected by others who allowed this to happen. There is so much evidence showing they know about this. Now we are victims of their corruption as they make sure they are not accountable and they would also like to continue leasing toxic apartments. It is a tangled web of greed and broken laws between Riverstone Residential and the Louisiana Housing Finance Agency (their job description is to provide safe, affordable housing) and neither want to acknowledge this. So, for the sake of these criminals all of our rights disappear and we are supposed to accept that ? I don’t think so. We also have to act in the best interest of my daughter’s baby who had just turned one when these people allowed him to be exposed to and breath in heavy doses of toxins. Out of all the illegal things done by these people that is the most criminal act of all. And they still lease those apartments. katy
Post from June
Note by Katy – Notice the difference as to why this apartment building is quickly cleared of all residents but in cases such as the one at Jefferson Lakes Apartments in Baton Rouge, LA managed by Riverstone Residential the residents and extremes amount of toxic mold are ignored. The difference is the residents in Westbury can better afford attorneys if there is a need to litigate. At Jefferson Lakes – Riverstone and state agencies know the residents in this complex generally would not have the financial resources for lengthy litigation and in fact are so comfortable in their knowledge they ignore documented Microbial Testing Reports, complaints and laws and joining them in this are the state agencies and courts. Money is only spent on this issue if there is a good chance litigation could be pursued which might cost them more in the end. This is obvious DISCRIMINATION AND A PUBLIC HEALTH THREAT. At least it is to the residents no longer living there but who have been possibly harmed and those living there now and the people who will be allowed to move in with no warning. All is ignored. Except of course in cases such as Westbury. Katy
Toxic Mold in Westbury, Long Island Apartment Complex Forces Residents to Relocate
Nov 29, 2007 | Parker Waichman Alonso LLP
Toxic mold exposure can cause serious health problems as the residents of a Long Island luxury apartment building recently found out. This week, the 21-building Westbury community on Corporate Drive is being cleared of all residents in nearly 400 apartments following reports of mold- and mildew-infested buildings. Archstone-Smith-a Colorado-based company that developed and manages the complex-discovered catastrophic water damage and must serve formal lease termination notices to residents who will need relocate by March 31, 2008. Residents, who say they’ve been reporting water problems to Archstone-Smith since 2005, called the situation outrageous and disgusting, saying they’ve endured leaky windows and grotesque mold in their home. Many report that they have been sickened with respiratory ailments. Building managers considered these isolated problems until an increase in complaints following this year’s rains.
Concentrated mold exposure can cause chronic cough, headaches, rashes, dizziness, excessive bruising, and hearing and memory loss. Black or toxic mold-Stachybotrys chartarum-is pathogenic, produces spores called mycotoxins, and can inhibit DNA and protein synthesis in mammalian cells, obstructing body functions. Toxic mold severely sickens people and pets and is a leading cause of “sick building syndrome.”
Moisture leaked into the inner walls at the Westbury luxury apartment complex, soaking insulation, and potentially compromising interior mechanical systems and structural safety. Hempstead officials said their inspections ensure compliance with state safety and structural codes and could not have detected design flaws or problems leading to water damage. Archstone oversaw construction and says it is too soon to tell whether shoddy construction or design defects are to blame. Town and county officials said they met with Archstone last week and were trying to help relocate residents. Tenants say Archstome painted over damage-such as water stains-instead of correcting problems. Archstone denied this, claiming the company addresses problems immediately. Town inspectors checked the Westbury complex Tuesday for structural damage and reported the complex is safe for tenants in the interim, but an electrical inspection is needed to ensure water had not damaged internal wiring. Archstone said the problem affected all 20 buildings and residents would receive one month’s relocation assistance and an additional stipend between $1,300 to $1,900. Renovations would take about a year; Archstone could not guarantee all tenants would be able to move back into their units. Archstone did not test for mold because there is no governmental standard for mold levels. Health officials say mold is considered homeowners and landlord responsibility adding that, if caught and resolved early, there are no issues.
This is not the first time that the Westbury luxury apartment manager has gotten in trouble for toxic mold. In 2003, Archstone-Smith agreed to pay $25 million to 800 tenants of a Florida complex for health-related issues resulting from a toxic mold. Archstone owns or is an owner in 350 properties-89,000 units-nationwide and claims Westbury’s problems are not consistent with Florida’s where the issue was due to a faulty HVAC [heating ventilation and air conditioning] system.
Long Island’s increasing problems with mold can be blamed on dampness, especially in basements of older structures; however, codes require newer buildings to be airtight, thus moisture can be trapped and mold can grow. Mold and dampness are factors in 21 percent of asthma cases, cost the nation $3.5 billion yearly in health care expenses, and increase the risk of respiratory- and asthma-related illnesses by 30 to 50 percent.