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Some Courts Permit Recovery for Cost of Diagnostic Tests Following Exposure

HE EXISTENCE of a manifest injury to person or property has long been an essential element of negligence and strict liability claims under traditional tort law. This requirement stems from the underlying purpose of tort law, which is to compensate plaintiffs for harm proximately caused by the wrongful conduct of others. In recent years, a number of courts have modified the traditional injury rule to permit claims seeking “medical monitoring.” Although the New York Court of Appeals has not yet addressed medical monitoring, the theory has been recognized by several New York courts and, unless the Court of Appeals (or the Legislature) rejects the theory, it is likely to become a more frequent claim in environmental and products liability litigation in the State.

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