G&S Obtains Summary Judgment Dismissing Various Toxic Exposure Claims as Time Barred

G&S recently obtained summary judgment dismissing various claims as time barred on behalf of several World Trade Center defendants. The plaintiff claimed he suffered various injuries due to his work cleaning the interior of buildings after the World Trade Center attacks.

We argued that all of plaintiff’s 14 separate claims of injury were subject to the three year statute of limitation [CPLR 214-c(2)] which runs from the date of discovery of the injury or from the date the plaintiff should have discovered the injury, whichever is earlier.

Plaintiff claimed that as a result of his post 9/11 work he developed a number of symptoms including coughing, chest pressure, headaches, throat irritation, nasal congestion, heartburn, shortness of breath, trouble sleeping, and psychological problems, among others. We argued that all of his injures were linked to at least one of these symptoms prior to December 17, 2004, three years prior to the filing of his summons and complaint.

The motion was complex given that plaintiff’s purported injuries were often related and overlapping which raised the question whether the discovery of a symptom caused the statute of limitations to begin running if that symptom could be related to more than one claimed illness?   Also at issue was whether early symptoms were too “isolated” or “inconsequential” to have triggered the statute to run.  In addition, there was the issue of whether any of plaintiff’s injuries manifested and/or morphed into separate more serious injuries that could trigger a separate statute of limitations.  Finally, plaintiff made the novel argument that the early diagnosis of certain conditions should not have triggered the statute of limitations because these diagnoses were premature and or inaccurate.

In the absence of significant opposition, the Court granted the motion dismissing plaintiff’s claims for Asthma, Rhinitis, GERD, Laryngitis, Depression, Anxiety and PTSD on the basis of his medical records and his testimonial admissions.

With respect to his claims of COPD, RADS and Sleep Apnea, plaintiff argued that the initial diagnoses should not have triggered the statute because the diagnoses were not accurate. The Court however, adopted our argument that the statute is not triggered due to a diagnosis, but rather from the time the plaintiff had sufficient notice of his injury.  We argued that subjectively, the plaintiff clearly had sufficient notice of his injury based on a diagnosis, even if it later turned out the diagnosis was erroneous.

With respect to plaintiff’s claims of Lung Nodules, Sinusitis, Interstitial Lung Disease and Bronchitis, the Court found there was insufficient expert proof in the record to determine whether the symptoms that plaintiff experienced could be related sufficiently to the specific injuries claimed. Since expert discovery is now commencing, the Court denied the motion without prejudice to renew at the close of expert discovery.

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