Port Authority faces class action lawsuit saying it secretly filmed medical exams

By Mark Schremmer, Land Line associate editor | 2/14/2019

The Port Authority of New York and New Jersey will face a class action lawsuit for allegedly filming its employees’ private medical exams without their knowledge, a federal court judge has ordered.

A judge for the U.S. District Court for the Southern District of New York on Tuesday, Feb. 12, denied the Port Authority’s motion to dismiss the employees’ claims under the Fourth and 14th amendments of the U.S. Constitution. However, the court threw out claims that the Port Authority violated the New York State Constitution.

The lawsuit stems from a 2016 incident when Port Authority employee Charlene Talarico received a hand injury during an altercation with a coworker. After the altercation, Talarico received an exam at one of the medical services offices that the Port Authority provides exclusively for its workers.

Talarico later took the coworker to court over the incident. During the course of discovery, the Port Authority allowed Talarico to view several recordings, one of which showed Talarico’s Aug. 4, 2016, medical examination in its entirety. The recording appeared to have been taken from a camera that was mounted from the wall or ceiling and pointed directly into the exam area. She said she did not consent to nor was she aware of the recording.

On Feb. 1, 2018, Talarico filed a class action lawsuit against the Port Authority, claiming that the act violated the Fourth and 14th amendments, as well as two counts under the New York State Constitution. The Fourth Amendment protects against illegal search and seizure, and Talarico argues that the 14th Amendment’s due process clause protects individuals from arbitrary intrusions into their medical records.

The Port Authority contended that Talarico failed to state a claim to any plaintiff other than herself and that the allegations of it having a “policy, practice, or custom of covertly video surveilling employee medical examinations” was a “conclusory statement devoid of factual specificity.”

However, the court said the facts surrounding Talarico’s incident supports the inference of a more widespread practice.

“If, as is alleged, the Port Authority used an installed camera to videotape one run-of-the-mill medical examination, it is plausible to infer that the Port Authority regularly recorded others, too,” Judge J. Paul Oetken wrote. “If anything, it is the Port Authority, not Talarico, that asks the court to draw an implausible inference: that the video camera somebody had taken the trouble to set up as a permanent installation in a Port Authority examination room was not generally being used to record what happened in that room.”

Another argument from the Port Authority was that even if the exams were habitually recorded by a “rogue employee,” the Port Authority wasn’t aware of the practice.

“The argument, too, strains credulity,” the court wrote. “After all, it was the Port Authority that provided Talarico with the recording of her examination in the first place.”

The Port Authority also asked the court to dismiss the allegations it violated the New York State Constitution, saying the claims were essentially identical to the ones made under the U.S. Constitution.

“The court agrees that Talarico’s state-law claims must be dismissed,” the court wrote. “Where a complaint alleges no theories of liability that are cognizable exclusively under the New York State Constitution, any claims brought under the state constitution are ordinarily dismissed.”

The Port Authority was given 14 days to respond to the remaining claims.

 

 

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