S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2265
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 14, 2021
                                ___________
 
 Introduced  by  M. of A. NIOU -- read once and referred to the Committee
   on Judiciary
 
 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.
   (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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03756-01-1

 A. 2265                             2
 
   (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-i to read as follows:
   §  214-I. 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.