Today the Supreme Judicial Court of Massachusetts issued an opinion in Donovan v. Philip Morris USA, Inc., 2009 WL 3321445 (Mass. Oct. 19, 2009), recognizing a cause of action under Massachusetts law for medical monitoring. Because colleagues at my firm were involved in this case, I'll just stick to some selected quotations with no commentary.
A federal district court had certified two questions to the Massachusetts Supreme Judicial Court:
"1. Does the plaintiffs' suit for medical monitoring, based on subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state a cognizable claim and/or permit a remedy under Massachusetts state law?
"2. If the plaintiffs have successfully stated a claim or claims, has the statute of limitations governing those claims expired?"
The state court answered the first question "yes," and the second question "no."
On medical monitoring, the court stated:
When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort. No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change. This should address any concern over false claims, . . . yet permit a genuinely injured person to recover legitimate expenses without having to overcome insurmountable problems of proof in this difficult and complex area. . . . The expense of medical monitoring is thus a form of future medical expense and should be treated as such.
In conclusion, each plaintiff must prove the following: (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. Proof of these elements usually will require competent expert testimony.
2009 WL 3321445 at *7-*8 (citations omitted).
On the statute of limitations issue, the court said:
In this case, it is not merely the risk of cancer of which the plaintiffs have notice, but the substantial increase in the risk of cancer, as reflected in their complaint. Because the harm involves subclinical changes that only will be discovered by a physician, notice most likely will take the form of advice by a physician, together with a recommendation for diagnostic testing conformably with the medical standard of care. In short, the statute [of limitations] begins to run when (1) there is a physiological change resulting in a substantial increase in the risk of cancer, and (2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method of lung cancer screening or surveillance.
Id. at *9.
The court noted that its "opinion addresses only individual claims, not a class action. We express no view about the superiority of a class action (the use of a court-supervised medical monitoring program) over an individual adjudication of claims and an award of monetary damages." Id. at n.10. The court also advised that the medical monitoring claim "would, of course, remain subject to all affirmative defenses, such as contributory negligence." Id. at n.11.