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COMMERCIAL LITIGATION | PRODUCTS LIABILITY AND TORTS LITIGATION

Alert: October 30, 2009

Massachusetts Supreme Judicial Court expandscommon law and statutory liability to includemedical monitoring expense damage claims.

In a landmark decision last week, the Massachusetts SupremeJudicial Court (the “Court”) ruled on questions certified by the U.S.District Court for the District of Massachusetts that claims formedical monitoring expense damages are valid underMassachusetts law where the plaintiff has sustained subcellularchanges due to hazardous substance exposure that substantiallyincreases an individual’s risk of serious disease, illness, or injury.

Although the ruling in the case, Donovan v. Philip Morris USA Inc.,Mass. Sup. Jud. Ct., No. SJC-10409, (Oct. 19, 2009), marks amove toward acknowledgement of latent, subcellular injuries inMassachusetts as a basis for damage claims, jurisdictions are spliton whether to allow medical monitoring claims without a manifestphysical injury. Currently, only a handful of states allow medicalmonitoring claims without a present injury, including Arizona,California, Florida, New Jersey, Pennsylvania, Utah, and now,Massachusetts.[1] The majority of courts confronted with similarclaims have rejected them on the grounds that the applicable lawrequired a present physical injury as a basis for the plaintiff’s claimand not merely a change in subcelluar condition due to allegedharmful exposure to a hazardous substance.[2]

The Donovan ruling answered two questions posed by the UnitedStates District Court for the District of Massachusetts: 1) whetherthe plaintiffs claims for medical monitoring, based on exposure tocigarette smoke and increased risk of lung cancer, present a validclaim, and permit a remedy, under Massachusetts state law; and ifso, 2) whether those claims were barred by the statute oflimitations. Id. at 1-2 The Court ruled the plaintiffs had a valid causeof action for medical monitoring based on subcellular changes tothe lungs from cigarette smoke and, assuming plaintiffs’ allegationswere true, those claims may not be barred by the applicable statute

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of limitations.[3] Id. at 2.

Plaintiffs’ suit demands that Philip Morris establish a courtsupervised and administered medical monitoring program using anew technology called low-dose computed tomography (LDCT)chest scans. Id. at 4-5. LDCT scans allow for much earlierdetection of lung cancer than prior screening procedures ormechanisms.

The crux of the issue is whether plaintiffs need to establish apresent physical injury in order to prevail on their claims againstPhilip Morris. Plaintiffs argued they have a present physical injury,in the damage to the tissues and structures of their lungs, resultingin a substantially increased risk of cancer, and that this injury wascaused by Philip Morris’ negligence in the design and manufactureof Marlboro cigarettes.[4] Philip Morris countered that becauseneither of the plaintiffs has been diagnosed with lung cancer, theyfailed to present evidence of present physical harm manifested byobjective symptomotology. Id. at 19.

The case is noteworthy primarily because of the remedy sought byplaintiffs, i.e., instead of seeking total general and special moneydamages, plaintiffs are only suing for the medical testing costs andestablishment of a court-run medical monitoring program to aid inearly detection of lung cancer. In recognizing a valid claim to thiselement of damages, the Court compared plaintiffs’ situation to thatof a shaken baby or a pedestrian struck by a motorist, both ofwhom may recover expenses for diagnostic tests determined to bemedically necessary to ascertain the existence of injuries even ifthose tests produce negative results.[5] The Court noted that inthose situations, outward signs of physical injury would not berequired. Id. at 19-20.

In so holding, the Court specifically recognized the need for tort law“to adapt to the growing recognition that exposure to toxicsubstances and radiation may cause substantial injury which shouldbe compensable even if the full effects are not immediatelyapparent.” Id. at 22.

The Court held that, in order to establish their damage claims, eachplaintiff must prove seven elements: “(1) The defendant'snegligence (2) caused (3) the plaintiff to become exposed to ahazardous substance that produced, at least, subcellular changesthat substantially increased the risk of serious disease, illness, orinjury (4) for which an effective medical test for reliable earlydetection exists, (5) and early detection, combined with prompt andeffective treatment, will significantly decrease the risk of death orthe severity of the disease, illness or injury, and (6) such diagnosticmedical examinations are reasonably (and periodically) necessary,conformably with the standard of care, and (7) the present value ofthe reasonable cost of such tests and care, as of the date of thefiling of the complaint.” Id. at 23. Although not as clear as it mighthave been on this point, the Court has determined that an additionalform of medical expense damages is recoverable in negligence,

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warranty, and unfair trade practice law but has done so withoutcreating a new and distinct cause of action for medical monitoring.

The Court also held that plaintiffs’ claims may not be barred by theapplicable statute of limitations.[6] Plaintiffs are seeking onlymedical monitoring through the use of LDCT chest scans, arelatively new procedure. They allege that prior to the advent of theLDCT, they had no effective remedy, and thus could not havebrought their suit previously. The Court ruled if plaintiffs canestablish these circumstances, which are unusual and perhapsunique to medical monitoring claims, then their claims are timely.The plaintiffs also must show that the standard of care of thereasonable physician did not call for monitoring of anypre-cancerous condition by other means prior to the expiration ofthe limitations period, not just that the technology at that time wasless effective for monitoring.[7] Id. at 29.

The Court’s ruling raises questions about the prospect of claims formedical monitoring in other toxic tort areas, both in Massachusettsand perhaps elsewhere, should other courts adopt this rationale.[8]Similarly, insurers that have underwritten commercial generalliability insurance in these industry segments should be aware thatthey may see an increase in claims for defense and indemnitycosts relating to medical monitoring claims in Massachusetts and inother jurisdictions where such claims have been embraced. TheDonovan case thus has significant implications for claims relatingto asbestos, nanotechnology, toxic chemicals, pharmaceuticals,and other potentially hazardous substances, to the extent that itallows subcellular effects to satisfy the present physical injuryrequirement.

[1] See, for example, Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007)(holding that medical monitoring claims may be brought based on latentinjuries, meaning diagnosable physical injury or illness not immediatelyapparent, and for which years may pass before symptoms aredetected); Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28,33-34 (Ariz. Ct. App. 1987) (holding that awards of surveillance costs tomonitor the effects of hazardous chemical exposure are allowed in theabsence of physical injury); Potter v. Firestone Tire & Rubber Co.,6 Cal.4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795, 822-23 (Cal. 1993) (enbanc) (same); Petito v. A.H. Robins, 750 So.2d 103, 106-07 (Fla. Ct.App. 2000) (same); Ayers v. Township of Jackson, 106 N.J. 557, 525A.2d 287, 314 (N.J. 1987) (same); Redland Soccer Club, Inc. v. Dep't ofthe Army, 548 Pa. 178, 696 A.2d 137, 145 (Pa. 1997) (same); Hansenv. Mountain Fuel Supply, 858 P.2d 970, 979-81 (Utah 1993) (same);Bower v. Westinghouse, 206 W. Va. 133, 522 S.E.2d 424, 429-30 (W.Va. 1999) (same). Additionally, several federal courts have predicted the allowance of suchclaims by certain state courts. See, In re Paoli R.R. Yard PCB Litig., 916F.2d 829, 852 (3d Cir. 1990) (concluding correctly that the PennsylvaniaSupreme Court would later recognize a medical monitoring action withouta showing of physical injury); Martin v. Shell, 180 F. Supp. 2d 313, 323(D. Conn. 2002) (noting a citation by Connecticut Supreme Courtindicating that it would uphold a medical monitoring action without

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requiring physical injury); Carey v. Kerr-McGee Chem. Corp., 999 F.Supp. 1109, 1119 (N.D. Ill. 1998) (concluding that the Illinois SupremeCourt would uphold a claim for medical monitoring without requiringplaintiffs to show actual, present injury); Bocook v. Ashland Oil, Inc., 819F. Supp. 530, 537-38 (S.D. W. Va. 1993) (concluding incorrectly inhindsight that Kentucky law would recognize a medical monitoring actionwithout requiring injury); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468,1476-77 (D. Colo. 1991) (concluding that the Colorado Supreme Courtwould probably recognize a medical monitoring cause of action withoutrequiring physical injury).

[2] See, for example, Paz v. Brush Engineered Materials, Inc., 949 So.2d 1 (Miss. 2007) (holding that Mississippi does not recognize a claim formedical monitoring without a present injury); Hinton v. Monsanto Co.,813So.2d 827, 830-32. (Ala. 2001) (holding that Alabama law does notrecognize a medical monitoring action absent a present injury); Wood v.Wyeth-Ayerst Labs, 82 S.W.3d 849, 852-56 (Ky. 2002) (holding thatKentucky law does not recognize a medical monitoring cause of actionabsent present injury); Henry v. Dow Chem. Co., 473 Mich. 63, 701N.W.2d 684, 686 (Mich. 2005) (holding that Michigan law does notrecognize a medical monitoring action absent present injury); Badillo v.American Brands, Inc., 117 Nev. 34, 16 P.3d 435, 440-41 (Nev. 2001)(holding that Nevada law does not recognize a medical monitoring causeof action absent a present injury); Lowe v. Philip Morris USA, Inc., 142P.3d 1079, 207 Ore. App. 532, 556-57 (Or. Ct. App. 2006) (holding thatOregon law does not permit recovery for a medical monitoring actionwithout physical injury).Additionally, several federal courts have predicted the rejection of suchclaims by state courts. See Parker v. Brush-Wellman, Inc., 377 F. Supp.2d 1290, 1296, 1302 (N.D. Ga.. 2005) (concluding that the GeorgiaSupreme Court does not recognize a medical monitoring action withoutthe showing of an injury); Jones v. Brush Wellman Inc., No. 1:00 CV0777, 2000 U.S. Dist. LEXIS 21897, *23 (N.D. Ohio Sept. 13, 2000)(concluding that Tennessee law does not recognize a medical monitoringaction absent a present injury); Trimble v. Asarco Inc., 232 F.3d 946,962-63 (8th Cir. 2000) (rejecting medical monitoring claim absent presentinjury on the basis that Nebraska does not recognize such an action); Ballv. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir. 1991) (holding thatWest Virginia does not recognize recovery of medical monitoring costsabsent physical injury); Duncan v. Northwest Airlines, Inc., 203 F.R.D.601, 607-09 (W.D. Wash. 2001) (concluding that it would be contrary toWashington law to recognize a medical monitoring action absentaccompanying present injury); Thompson v. Am. Tobacco Co., Inc., 189F.R.D. 544, 552 (D. Minn. 1999) (declining to recognize a medicalmonitoring action); Thomas v. FAG Bearings Corp., 846 F. Supp. 1400,1410 (W.D. Mo. 1994) (inferring that Missouri law would not recognize amedical monitoring action absent proof of damages in the form of aninjury);Carroll v. Litton Sys. Inc., No. B-C-88-253, 1990 U.S. Dist. LEXIS16833, at *149-50 (W.D.N.C. Oct. 29, 1990) (concluding that theSupreme Court of North Carolina would not recognize a medicalmonitoring action); Purjet v. Hess Oil Virgin Islands Corp., 1986 U.S.Dist. LEXIS 15677, 22 V.I. 147, 153-54 (D.V.I. Jan. 8, 1986) (holdingthat to recognize a medical monitoring action would be contrary to thelaw governing the Virgin Islands); Mergenthaler v. Asbestos Corp. ofAm., 480 A.2d 647, 651 (Del. 1984) (holding that Delaware law does notrecognize a medical monitoring cause of action without a present injury).

[3] The Donovan case is a putative class action, though the U.S. District

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Court has not yet heard pending motions for class certification. TheMassachusetts Court ruled on the certified questions in the presentposture of the case involving claims by two individuals against PhilipMorris USA Inc. (“Philip Morris”). The Massachusetts court expresslytook no position on the class certification issues.

[4] The plaintiffs offered medical expert testimony that the physicalchanges caused by smoking left them at a substantially greater risk ofcancer due to the alleged negligence of Philip Morris.

[5] The Court required that the corresponding medical standard of careapply as a proper indication for use of the medical diagnostic tests inquestion.

[6] Similarly, the Court held that pursuit of a medical monitoring claims inthe context of a toxic tort case would not bar plaintiffs from a laternegligence claim, should they eventually contract cancer, under thedoctrine known as the “single controversy rule.”

[7] The statute of limitations for a medical monitoring expense damageclaim begins to run when 1) there is a physiological change resulting in asubstantial increase in the risk of cancer, and 2) that increase, under thestandard of care, triggers the need for available diagnostic testing thathas been accepted in the medical community as an efficacious method oflung cancer screening or surveillance.

[8] The court held that implied warranty and unfair trade practice claimsunder M.G.L. c. 93A, §§ 2 and 9, based on the same theory of injury andthe same alleged facts, would survive or fail on the same analysis as thenegligence claim.

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