WLF Legal Opinion Letter
"Subcellular Changes" Sufficient: Massachusetts High Court Endorses Medical Monitoring Claims
By Todd S. Holbrook
February 12, 2010 (Vol. 19 No. 4)
In Donovan v. Philip Morris USA, Inc
., the Massachusetts Supreme Judicial Court (SJC) expanded toxic tort liability to encompass medical monitoring claims, while at the same time rejecting application of the "single controversy" rule in such cases. 455 Mass. 215 (2009). The Court expressly declined to consider class implications, leaving those for the class certification phase of trial. The ruling, and future developments in the underlying class action, merits the close attention of any civil litigation defendant which may confront medical monitoring claims.
In a question of first impression certified to it by the U.S. District Court for the District of Massachusetts, the SJC held that medical monitoring claims may go forward when hazardous substances induce subcellular changes that put the plaintiff at higher risk of developing disease. In its decision, the court noted that tort law must change with the times: "Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent."
The SJC held, therefore, that medical monitoring claims may proceed if the plaintiff can allege, and later prove, the following seven points:
(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.
Of note, the plaintiffs in Donovan alleged that cigarette smoke damaged their lung tissues, in particular that toxins in the smoke damaged the genes of airway cells and impaired the repair mechanisms that protect against genetic damage, resulting in genetic mutations. These allegations appear intended to distinguish this case from recent cases in other jurisdictions in which courts have repeatedly held that where no injury is claimed, no remedy will be allowed. See, e.g., J. Chester, No Harm, No Foul in New Jersey: No-Injury Monitoring Rebuffed, Wash. Legal Found. LGL. BACKGROUNDER (Oct. 24, 2008); M. Behrens et al., Mississippi Supreme Court Rejects Medical Monitoring, Wash. Legal Found. LGL. OPINION LTR. (Feb. 9, 2007). Plaintiffs in the New Jersey and Mississippi cases had alleged an increased risk of harm due to defendants' conduct, but not any present injury from that conduct. By contrast, the Donovan plaintiffs specifically allege physical harm in the form of genetic damage.
The SJC considered but rejected Philip Morris's argument that compensable physical harm must be accompanied by objective symptomology. Examples given in support of the SJC's decision include an infant shaken violently who should be allowed diagnostic testing to determine if a brain injury exists, even if the testing produced negative results. Similarly, said the court, subcellular changes may indicate that the plaintiff is at heightened risk of disease for which monitoring may allow prompt, effective treatment. If so, the plaintiff may proceed with a medical monitoring claim.
The state high court's ruling obviously leaves much work for the federal district court. Although the case cannot be dismissed based solely on the pleadings, the next milestone will likely be class certification. Can a class be certified on this basis? Plaintiffs will likely argue that the class should include those who test positive for genetic changes as part of the monitoring process. But that would circumvent the very fact which distinguishes Donovan from prior cases. That is, if Philip Morris has to pay for testing to determine who is and is not in the class, then the present genetic injury prong of the Donovan test will have no meaning.
But if Philip Morris does not pay for genetic testing -- as it should not have to do -- how can one determine who is and is not in the class? The Donovan complaint lists a class of those who smoked Philip Morris's Marlboro products within four years of the date suit was filed (so as to avoid argument that the statute of limitations bars their claims) and who have a 20 pack-year history of smoking Marlboros. It is likely that the overwhelming majority of such persons have never had any testing to determine possible gene mutations, and thus cannot know whether or not they are in the class. Must Philip Morris notify them all? If the testing shows genetic changes, how can anyone determine that the changes were caused by cigarette smoke during the limitations period for any smoker other than the vanishingly few who smoked only during the limitations period? Causation issues like this should prohibit certification of the purported class. That was the result, for example, in In re Aredia and Zometa Products Liability Litigation, U.S. Dist. Ct. M.D. Tenn. 3:06-MD-1760 (Oct. 10, 2007). There, the court denied class certification in part because causation analysis would involve consideration of dosage, duration of treatment, medical history, age, and other factors. The same is true here. In the Donovan complaint, plaintiffs admit some smokers inhale smoke more forcefully than others. Each has smoked for different durations, albeit with a floor of 20 pack-years as proposed by the class definition itself. Other medical factors come into play, as do histories of smoking other cigarettes. All of these factors should dissuade the district court from certifying the purported class.
For these reasons, although in some limited contexts medical monitoring may be appropriate -- which is all the SJC determined in answering the questions certified to it by the district court -- the district court should nonetheless (in this instance at least) deny class certification or limit it to those who smoked only in the preceding four years and who can prove that as of the date of filing suit they had a known genetic injury caused by cigarette smoking.
Todd S. Holbrook is a partner in the Boston, Massachusetts office of the law firm Morgan, Lewis & Bockius LLP.