we have three cases that are being heard in tandem and we're going to start with two of them together and then here the third ward separate will argue the bacon case and the property damage part i'm going to concentrate on the benteke a modern ing issues in the cases in all the cases proceed thank you very much your honor karoly up which this court is quite familiar with in which you certified a question of whether medical monitoring is a stand alone course of action decided that it was not but that was not the only holding or the rationale or the policy behind the court of appeals opinion and we think erroneous is important and called in was the outcome of this case it is nonsensical or dicta in that case as the judge below indicated what coroneos said in effect was that the fundamental fundamental principle of tort law in new york state was physical injury that you cannot have a cause of action even as consequential damages without the presence of a physical injury and why hasn't finding  exposure and all of the cases which we'll discuss that one of the new york carry says that the plaintiffs here have real right on have all looked at it even as consequential damages that you have to blood a physical injury because it doesn't do anything it's sits there it's like it's like there until until it does nothing nobody knows what they really do anything to you or not it is sto speculative whether anyone will have an injury as a result of this is it your contention that the court in corona addressed the what it means to have an injury or physical manifestation of the disease talk doesn't say i'm going to interrupt you can acknowledge ironic because the court says plaintiffs do not claim to have suffered physical injury and damage or damage to property and it goes on the presumption they have not in my reading so i wonder why that is wrong because i understood that the physical injury aspect of the case had earlier been dismissed on statute of limitations grounds you don't understand what what the court could have said here about injury i'd like you to explain that i  sell your injury so here to there is no little nothing would induce them but i like the question is what is injuries in a physical manifestation of a body change that would warrant some increased medical monitoring for example or is it does it have to be a symptom of a disease and there's a long spectrum in cases of physical disease that can start with before stage one priest symptomatic through stage four cancer for example all right so we are where are we on that i don't see where the court is addressing well first let me let me bring your attention to the dissent definition of what  two because they didn't not manifest the kind of physical symptomatic injury traditionally required for a valid tort claim he didn't say that the statute of limitations had run he said they didn't have objective symptomatology so they could have had a traditional to what claim once again that wasn't before the court at this stage the presumption the understanding was that the plaintiffs no in the blood and if that there's a risk of future injury so the same allegations that were in monte aided in corona we have a question maybe a physical impact or measurable manifestation of exposure and not just fear of a fear of cancer or emotional injury there is a physical and measurable expression of exposure that's occurred it significantly increases the plaintiff's risks of disease and so it's not purely imaginary but once again i'm having difficulty understanding why that was even before the court and why why what corona you did bears on this is our semantic discussion of what an injury is and well let's talk about a boozy go first and then we could talk about asking which was the second case in both of those cases that the court looked at for new york law those were consequential damage those weren't medical monitoring cases so in a bush you know the court said and it was up korean decision it's not not a lot of rationale by the second department in that case in that case the court said that you have to have something diagnosable exposure itself doesn't count that's what we have here exposure but again no we have something that's different and there's exposure and that exposure that's expressed actually in a physiological change that's some but that there's no indication that they're ever going to get a disease with it they have a disease it's almost you're on it's like saying everybody who is breathing did an asbestos and has has passed it in their lungs they was gave you a three hundred percent chance of contracting cancer in the next five here and that and that's exactly what do i do prior had been before him and buck me in the united states supreme purposes i mean after all the statute of limitations has been altered by the legislature corona spoke to this independent cause of action but not not focus on injury we can't look to the dissent to understand what the majority would hold is an was started that the statute of limitations running on an exposure yeah and that that that's your adversaries point out that there's a long series of cases in new york that this is that is the it was the entry that triggered t that's why that further agree that same kobe and or honeywell would be responsible for the costs of that disease yet here on it that way that they with that least have a cause of action for that disease we would was do you agree as most medical experts argue that early detection cuts down the cost of treating the disease not so ironic because we don't even know what the diseases are and that i don't agree that early of a disease but that but it's more than the early detection you're honored by the medical monitoring will to make any changes would would it mean that you could be treated soon and many of these diseases it doesn't matter you can't be treated soon and that was that it might doesn't mean that the other policy reason for not opening the floodgates it is perhaps now out front gates this is a small town and we know how many people live there so it's not as if all of upstate new york would be  for medical monitoring that you plausibly state that at the levels that are detected in your blood that you have a ninety five percent chance that it's clinically been demonstrated you have a ninety five percent chance of developing kidney cancer in the next year you had numbers like that why why is that not discernible subclass that response to your flood gates argument and that makes a plausible claim for medical monitoring early well i'm saying that that even looking at it physical manifestations is not something that is purely emotional damages as was claimed in buckley a fear this is is judge poolers pointed out an actual measurable impact so it's not subject to imaginary claims and you and i might disagree about whether it's an injury you seem to be saying that only if you're symptomatic with the disease do you have an injury that and right or i looking to parse the language of injury a little further or perhaps to ask the new york court of appeals to do that because there is such a long continuum between having and just an exposure you just walk through the field to having severely where people already had cancer where the people were a symptomatic is the people here but they had to put the drug that put the substances in their body where they had been exposed to new york appellate courts have you're diagnosable but actually you have no symptoms is there an injury your honor if you have no symptoms i believe under new york law as interpreted by the appellate division and the new york court of appeals you have no injury you have to have a physical men cases i mean but lung cancer typically isn't diagnosed with stage four because and diagnosed by accident but in fact you have the disease that was the whole that was the whole purpose in corona you're in the argument that was made that was rejected by the new york court of appeals and that i believe would have been rejected if it was part of the consequential damages because they did not have a physical manifestation of injury they were there is litigation is all over the country on this the only case roads in which this was decided by what held there couldn't be medical monitoring and not on a new york law or of course because there was no and apply it uncritically in a materially different context i believe that the defendant's arguments are doing exactly that in this case this corona because corona as the court has already indicated was a far different factual scenario when when corona you got to the court of appeals in new york it left this court having this court having dismissed all of the common law claims on statute of limitations grounds groan you remember the facts of the cornea case were that the y allege that twenty pack year marber all smokers had been exposed to excessive levels of tar and that they should have been offered lower tar cigarettes during that time and that additional tar that they got increased their damage because that was the justification for doing the medical monitoring but not as the injury because they couldn't because they couldn't claim that because they claimed that their people would smoke anyway and as the district court pointed out when it dismissed their medical monitoring claim the piece that was missing from them is they were going to smoke anyway they didn't prove that they would've needed medical monitoring even if they were smoking the lower tar cigarettes so there was a very unique situation that they were they were presenting there and they couldn't claim that toxic  inhalation wasn't was an injury because first of all it says limitations was blown but secondly their claim was not that that smoking was dangerous it was that these particular cigarettes had more tar than they should have had so it was a very unique factual sorts scenario and as the court pointed out in the very beginning of the crony case the court pointed out that what you're seeking here is recovery without any claim of injury to personal property and that's where the discussion took off and that's case and in this case what's t claim of injury the claim of injury is the same injury that the courts in new york state have recognized for over eighty years the courts in new york state beginning with schmidt and running entirely almost a dozen cases for eighty years after that through the case that this court cited in affirming the lower court's snyder versus town insolation the court this court quoted snyder as saying disease is not the injury injury occurs on exposure disease as a consequence of injury and what judge kaye said in the consorted case is that this is settled law of new york that injury occurs on exposure you know that's why you have not asked for certification to the new york state court of appeal i don't think there's any reason your honor because what what judge condit in this case so what did the court of appeals do and it made the first made the decision that it is not going to adopt a new equitable claim for medical monitoring standalone if there is no claim for injury to person or property the second thing it did though is it affirmed or reaffirmed that the law that had had developed in new york state beginning with ascii that if there is a toxic exposure and the plaintiffs can prove that that toxic exposure was caused by the wrongful act of a defendant and that that that toxic exposure provides there's reasonable evidence that they should get medical monitoring and those expenses will be incurred then that can be recovered and consequential damages that happened in one nine hundred eighty four in abuse e o the second is the breathing in of the tocs of the toxic material that is exactly what the court of appeals has  halls has a cause of action right because they know they are all right i'm saying that toxic exposure by definition in new york is an injury now you can recover for injuries if you have the other elements of the claim right i mean you have to be able to breathing a couple of the best is fibers because we all breathe them you can prove that that has zip a consequence here we're going to be able to prove that having p s y levels at these levels based upon the c eight studies increases the risk of illness of  literature is very strong on that and again that's not before the court the issue before the court i'm looking for something more instant casual exposure because otherwise i mean pam says everyone who's it falls was exposed well here i am trying to understand  that so and if the literature is what you say it is about the causal connection between exposure regardless of blood level and disease why isn't the whole town here why why when people are exposed to p f away or were exposed before a before was was banned basically through a lot of different ways with regard to consumer products there were wrappers for food products that had p f away in them so the background levels are principally from in the in the background population or from those exposures that have and that level has been going down steadily since the chemical got taken off the market and out of those products but people that drink contaminated water accumulate away in their blood in their body over one hundred times above what the level is that's in the in the contaminated water so the people that drink contaminated water air are in a whole different set than the rest of the asking three questions you know and i understand and it's a good question but the i don't think i think the appropriate question is what does new york law and what has new york law for eighty years recognized to be an injury that the injuries that  york law has recognized the new york law has recognized that toxic exposure is an injury and that's why that this statute of limitations had to be the accrual statute had to be changed in new york because people who were exposed were injured and then they didn't get to so there's no minimum level is that right or there is no there absolutely is no minimum level that's absolutely safe for p f way but but again there are proof issues with regard to lower levels as to whether that's a significant enough to require medical monitoring we have to prove all that this is not something that if this court affirms the lower court that suddenly everyone's going to get medical man we've got to prove all that but my point your honor is that this whole floodgates issue is really in the floodgates have been open since  eighty four and there's been no flood what judge condit is follow what ascii said and what abuse here said in one thousand nine hundred seven all of which said that it's sufficient if you prove that you had a toxic exposure and that increases your risk of incidence of  you have a right to try to prove that you're entitled to medical monitoring you can you have to prove it but you have that right and that that has not changed there's nothing in judge khan's decision the accumulation plaintiffs would have the right to medical mon and the non accumulation plaintiffs would not but i don't know there are no non accumulation of the well they're the ones who don't have the bloodstream yes i would say that if they don't have in other words the claim here is that the wrongful conduct of the defendants in causing the contamination of the groundwater caused these people to accumulate p f away at very high levels and puts them at increased risk of disease that's a that's a unique set of people that's not everyone that walk decided grania because as as as the court pointed out that the plaintiffs in crony didn't make that argument they claim that they didn't have any presidential race and what what happened at the end of it they claimed that they smoked they claimed that they smoked but they didn't claim that was the injury they claimed their injury was the extra tar from the smoke and they had been smoking for twenty years and they said they were going to smoke other kinds of cigarettes if marber all had lower tar cigarettes so they couldn't make that argument and that was never before the court the never the court never dealt with the issue injury but it did cite abuse email and ascii and schmidt and it didn't overrule them and then at the end of the case and that's the important thing so what the court of appeals didn't in crony is two things the first thing they did is said they're not going to adopt this new equitable cause of action but the second thing is that they reaffirmed what new york had been doing and with with regard to asking an abuse you know an ark and dangler they said that if you can prove that you have a toxic exposure injury and that's a sufficient injury or if you have an injury to property then you have a you have an existing court tort claim based upon either the injury to person or injured property and if you do then you can seek medical monitoring damage doesn't mean and warning them to just might deplete funds for injured plaintiffs doesn't that suggest the court of appeals is very sensitive to the kind of concerns that ms birnbaum was alluding to that once people have actually contracted disease and require treatment what's available for them is going to be depleted if we go through this early medical monitoring for people who have at most minimal levels of accumulation in their blood and have no either symptoms and are and no diagnosable disease that entire discussion their honor was in the exact context you pointed out was in the context of whether people who claimed prison injury could could have this new cause of action other which whether the court of appeal should create a new equitable cause of action that's where that discussion was if the court if the court wanted to make a broad statement that only symptomatic plaintiffs could get medical monitoring then it could have done it at in that conclusory paragraph that i mentioned where it said what the what the courts have been do going is what new york will continue to do and that is allow consequential medical monitoring damages the court could have enunciated the new rule at that point and they could have said although the abuse it ok says that it only takes  a clinically demonstrably measurement of the toxin in the body we're not going to follow that rule anymore now we're going to require more because of the reasons you said but the court of appeals didn't say that they had every chance to say it but they didn't the reason they made that discussion  because they were they were grappling with the issue of whether they should create a new standalone claim for medical monitoring in a situation where the plaintiffs claim they didn't have an injury at all could you address how your theory interacts with  died of as of the wife brought a loss of consortium claim together with with the claim of the husband when they got to the trial court level there was a motion to dismiss the loss of consortium claim in new york loss of consortium can only be recovered if the injury occurs after the marriage if the injury occurs before the marriage loss of consortium doesn't doesn't come into play so what happened in the case is the court of appeals said although we the legislature has changed accrual we haven't changed the definition of injury the injury in that case occurred does it say the legislature changed cruel i thought they had changed but they had told the statute well it's the same in other words basically what judge wesley made it very clear when justin was lee was on the court of appeals he decided he wrote a decision in a case called m r i rental broadway rental the very outside of that outside of that case the judge leslie makes it clear that although the legislature changed the rule with regard to tolling it didn't change the definition of injury in new york which is the same definition of injury for toxic invasion that new york has followed since med and so those two cases make it very clear that the co of appeals did not view the legislature as changing the definition of injury and in fact they said that that this was a solid new york state rule that that has never been changed and is as a matter of law it's an injury so that's the the judge con is working again we have a state that says that toxic invasion is injury we have the court repeal saying that abuse you know standard of clinically demonstrably all chemical in the body he is sufficient to warrant medical monitoring damage and that's what don't judge confound load so from my stress the alternative theory that you proffered that property damage being sufficient basis is well sure i think what the what the court of appeals said at the end of crony or was that if you  have in other words what what the crony distinction was between whether whether they were going to create a new cause of action for this unique group of people with this unique claim or not and they said that they were not but at the end they said if you having standalone traditional tort claim and that requires either injury to person or injured property then consequential damages of any type can be can be obtained so what the court of appeals was saying there and i think that's what would be consequential  prove property damage because property damage is enough to justify a traditional tom in law tort claim and the consequential damages flow the nexus between the property damages there needs to be some kind of nexus between the property damage and the medical monitoring well that the court of the court of appeals did not unseat that but for certain with regard to toxic exposures we're talking about contamination and so if a property is contaminated then people have the right to bring a claim for property damage which is the next thing i'd like to talk about if i get a few moments and and so if they have a claim for property damage the court of appeal said and the ivory court interpreted the court of appeals and cronie as saying they would have the right to consequential medical monitor damages to now again the right to collect the damages and proving the damages are two different things you obviously have to make all the elements of proof out the question is whether you get into the court house in the first place to try to make those claims and new york as has explicitly said yes they do have the right to get in and make those claims and as i said the floodgates that is worried about are not something that are going to be open because in this case they were opened in one nine hundred eighty four could you clarify also for me please would you be looking for a lump class action to develop that program medical monitoring is not something that is a scientific process a t s the are for instance the federal agency has guidelines for setting up medical programs under what circumstances under what types of are appropriate these are the things that experts follow when they set up medical monitoring programs some people get more monitoring because of the levels and because of their other risk factor some people get less this is a very delicate and complicated issue and this is something that's susceptible to proof what we want to do is get through the door to prove that we still have to do that your honor but there are accepted protocols for medical monitoring that would benefit these people and under new york law they've been injured sufficient to bring a cause of action that's really all that judge conn decided is that now we go to the next phase of having to prove all that and that's what we will do certify right it's only individuals in the benoit case and in the case of the baker cases the class action the case are individual cases and there has been no class certification yet we're still in the discovery phase we have a class certification coming up so a deal with the floodgates argument more people are going to come in to this class or they limited by the meets and bounds of the town or well they're limited by the people who drank contaminated water and who's it falls and can and drank enough of it so that they'll have elevated levels and so it's not a it people are not going to flood from in fact people are flooding out of mscribed group circumscribed by well we have we have two groups we have the people who are on public water that's a prescribed group because we know what people are on public water the public walls were contaminated they drank contaminated water from the public wells they have now tested numerous wells all throughout the area and some test positive for p a voice some don't it depends to some extent on the wind direction it depends how deep the wells are depends on what the soil conditions are some of the p f away gets down to the well some of it doesn't so but but in order to be in the class they have to have a contaminated well either they have to be if you're on public water if you're on public water you would have to be in the on the drinking the public water you have to live in a residence where you drank the public water for a sufficient period of time to have accumulation of b f way in your body it's not a it's not an unlimited class of problems in ascertaining who would be eligible for monitor yes and in other words that's what the proof will be and are all class definition will have to encompass that and the court will will wrangle with the best way to die identify the people that belong in the class the people that don't but those issues haven't been having have been broached i mean we've we've alleged that we've planted but we don't have as a classification yet cases the plaintiffs here argue the schmidt exposure cases and the court of appeals i think answered that schmidt and its prodigy just don't apply here and the reason is obvious the court says the clue rules set forth in schmidt and referenced in ascii was replaced by c p l are two fourteen and to make it even clearer are they didn't change the basic rule or just breathe the in the dust was when the injury to apply that was never the rule actually in new york it was just a statute of limitations purposes and i go on to explain why but there's another case blanco against american telephone the new after a physical injury has been proved and you want to you may have a problem of what is physical injury but you need a physical injury so now let me just bring your attention this is in our brief the court of appeals wants it and understanding what injury means it might feel injured if i had raised levels of a toxic substance in my blood that's not an injury under the new york definition no objective manifestation of injury and the cancer patients are allowed to get medical monitoring damages and some of the defendants have not asked for certifications the new york state court of bills because you think they've s now let me just end up with the property damage first of all they haven't planned property damage or they have they fled that they have been exposed to contaminated water they have never pled that there was any contaminated manifestation of that if you're on a believes that test the blood test is an injury we would argue that that stock and nobody knew go up has said that and if that's necessary to go to the new york court of appeals to clarify