Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

A recent report and recommendation from a US Magistrate Judge raises the question:  Does a group of patients who were exposed to pathogens but never developed a disease have a cause of action?

In Descoteau v. Analogic Corp., 2010 WL 325933 (D. Me. Jan. 21, 2010), Magistrate Judge John Rich III suggests that they do, although he clearly seems to stretch Maine law in order to find a cause of action for a bad factual situation.  If this report and recommendation is affirmed by the District Court, it will not be the first time hard facts have made bad law.

The facts are not pretty.  Plaintiff is one of some 23,000 veterans who were potentially exposed to HIV, Hepatitis B, Hepatitis C, and other bloodborne viral pathogens when they underwent diagnostic procedures and biopsies at VA hospitals using a rectal probe made by the defendants.  Both the operation manual for the rectal probe -- as well as the oral instructions from the device representative who demonstrated it at the VA hospital that treated plaintiff -- indicated that the probe could be cleaned by flushing it with a syringe full of detergent and water.  Years after the hospital bought and began using the defendants' rectal probe, the hospital's staff discovered that blood and fecal matter remained in the probe even after it had been cleaned according to the manufacturer's instructions -- without using a brush.  The VA conducted a systemwide review and notified some 23,000 veterans nationwide of the potential exposure and their need to receive testing for bloodborne pathogens and disease.  Plaintiff received his notice on April 14, 2006, was tested on April 27, 2006, and was notified that fortunately his test results were negative on May 11, 2006.  Plaintiff sued on behalf of a class of 528 veterans who were potentially exposed to bloodborne pathogens at the Togus VA Medical Center in Augusta, Maine, asserting causes of action for strict liability and negligent infliction of emotional distress.

The defendants moved to dismiss, asserting Maine's 6-year statute of limitations, arguing that plaintiff's original diagnostic procedure occurred more than six years prior to his filing suit.  The Magistrate Judge easily dispatched of that challenge, holding that plaintiff's cause of action for emotional distress did not accrue until he was notified in 2006 that he might be infected.  Thus, the suit was well within the statute of limitations.

Defendants also moved to dismiss the strict liability count, citing the language of Maine's strict liability statute, which provides:

One who sells any goods or products in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to a person whom the manufacturer, seller, or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property, if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it was sold. 

Id. at *5 (quoting statute).

The defendant argued that a prerequisite to a strict liability claim is physical harm or impairment, and that plaintiff -- who contracted no disease and suffered no impairment -- thus could not bring a claim.  Plaintiff argued, however, that the needle stick required for the HIV and Hepatitis testing qualified as "physical harm" sufficient to support a strict liability claim.  The court -- striving to find a cause of action for an obviously-inconvenienced plaintiff -- bought the argument, observing that "[t]he defendants cite no authority in support of the proposition that a needle stick or blood draw constitutes insufficient physical harm, as a matter of law, to support a strict liability claim, and I find none."  Id.

But the rule of strict liability is not available for all types of harm; rather, it is reserved for physical injury and damage to property.  The Restatement defines physical injury as a "detrimental change in the physical condition of a person's body."  Id. at n.4.  The court's stretching of the definition of physical injury to encompass a subsequent needle stick effectively reads the physical injury element out of the statute.  Nevertheless, the court recommended that the strict liability claim should survive the motion to dismiss.

The defendants also moved to dismiss the negligent infliction of emotional distress ("NIED") claim.  The court began by opining that the plaintiff had sufficiently alleged a count for negligence for physical injury (i.e., the needle stick).  But as for emotional distress, the court was bound by Maine precedent that reserves the cause of action for defendants who are in a special relationship with the plaintiff.  Maine courts have found such special relationships in very limited circumstances (e.g., doctor-patient, counselor-patient, hospital-decedent's family).  Id. at *6.  The court held that because its research had not uncovered an instance where the Maine courts had found a special relationship between a manufacturer and an end user, the NIED claim must be dismissed.

It remains to be seen whether the District Court will adopt the report and recommendation in Descoteau, which effectively reads the physical injury requirement out of Maine's strict liability statute and thereby would impose upon manufacturers strict liability for purely emotional harm.  Even if it did, however, it is difficult to fathom how 528 people's emotional harm could be adjudicated on a classwide basis consistent with the requirements of Rule 23.

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A recent statute of limitations decision out of the Southern District of Illinois highlights the duties that plaintiffs have to investigate their causes of action and bring them in a timely manner. 

In Wetherell v. ClimateMaster, Inc., 2009 WL 4043539 (S.D. Ill. Nov. 20, 2009), the plaintiffs had bought a geothermal heating and cooling unit for their home in June of 1999.  They did not sue the manufacturer in a putative class action, however, until over 8 years later, in September 2007.  The defendant, understandably, challenged the timeliness of suit under the statute of limitations.  Plaintiffs responded, asserting the discovery rule and charging that the defendant had fraudulently concealed plaintiffs' causes of action.  The court granted the defendants' motion to dismiss, holding that plaintiffs' claims were untimely filed and that the fraudulent concealment doctrine did not apply.

Notably, the only causes of action remaining at the time the defendant moved for summary judgment were violation of the Illinois Consumer Fraud Act and unjust of enrichment -- both of which triggered the running of the statute of limitations on the "accrual" of a cause of action under the discovery rule, i.e., when the plaintiff knew or reasonably should have known of his injury and that it was wrongfully caused.  (We do not know from the opinion whether plaintiffs previously had pled breach of warranty causes of action, but their absence is not surprising, since the statute of limitations for warranty claims runs from the date of sale, not the date of "accrual" under a discovery rule.)  The statute of limitations on the ICFA claim is 3 years from accrual; for unjust enrichment, it is 5 years from accrual.

In determining when the causes of action reasonably accrued, the court looked to plaintiffs' deposition testimony.  Within 2 years they had begun experiencing problems with the unit.  In September 2001, the installer had to return and add three pounds of refrigerant.  Then, on March 15, 2002, the installer discovered a leak in the unit's air coil and replaced the coil with another.  The unit continued to have problems, and in February 2005, the installer added another pound of refrigerant, and in late 2005 it once again replaced a leaky air coil and added refrigerant.

Apparently ClimateMaster's air coils were not coated with enamel and, as a result, had a tendency to corrode in the Illinois climate.  ClimateMaster knew this fact, and its employees had recommended coating its coils with enamel to remedy the problem.  Slip op. at *2.  The court found that "ClimateMaster never disclosed the fact that they knew its air coils tended to leak to any Illinois consumers, nor did it issue a standard communication to those consumers or dealers about the problems with the air coils."  Id. 

So when did plaintiffs' causes of action accrue?  If it was late 2005, then plaintiffs' claims would be timely.  If, however, it was when the first coil was replaced in 2002, they would not.

Plaintiffs' testimony was the key.  Mrs. Wetherell testified that she knew in March 2002 that the reason for the problems she had experienced was a failed air coil, and she suspected that ClimateMaster -- and no one else -- was responsible for the unit's failure.  Id.  Mr. Wetherell testified that he knew in March 2002 that he could take legal action against someone, but later in his deposition he seemed to recant this position.  Id. at 4.  Nevertheless, the court concluded, his failure to further investigate the cause of injury in 2002 was constructive knowledge that the injury was wrongfully caused.  Id.  As the court explained, "the need to discourage delay and encourage diligence" means that the statute is triggered once plaintiff knows that he is wrongfully injured, not when he recognizes the full extent or cause of his injuries.  Id. at *3.

Plaintiffs sought to avoid summary judgment by arguing that the repeated failure of the unit was a "continuing violation" so that triggering of the statute of limitations should be held in abeyance until the last injury occurred.  The court flatly rejected this argument, noting that this was not a continuing violation" because plaintiffs did not continue to purchase heating and cooling units; rather, they serially attempted to remedy the "'continual ill effects from an initial violation,' which is not a continuing tort."  Id. at *5.  Moreover, the "continuing violation" theory has not been applied to ICFA causes of action in Illinois.  Id.

Plaintiffs also sought to forestall the effect of the statute of limitations by arguing that ClimateMaster fraudulently concealed the causes of action plaintiffs had against it.  The court quickly rejected this argument.  Fraudulent concealment, it noted, involves "'efforts by the defendant, above and beyond the wrongdoing upon which plaintiff's claims is founded to prevent, by fraud or deception, the plaintiff from suing in time.'"  Id. at *6 (citation omitted).  But the only evidence plaintiffs provided was that ClimateMaster failed to disclose the defects in its coils when it sold and serviced the unit.  Remaining silent, however, is not fraudulent concealment unless the defendant has a fiduciary or other confidential relationship with the plaintiff placing upon the defendant a legal duty to speak.  And ClimateMaster, as a product seller, has no confidential relationship with the buyer and thus has no legal duty to speak; therefore, its mere silence about the alleged defect cannot be fraudulent concealment.  Id. at *7.  Accordingly, the ordinary statute of limitations applies, and plaintiffs' decision to wait to file suit more than 5 years from when they first understood that they had experienced a wrongful injury bars their claim.

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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.

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In states like Illinois, which have relatively short (2-year) statutes of limitations for strict liability and negligence, there often is a lot of litigation over the "discovery rule."  The discovery rule is designed to relieve the harshness of a tort statute of limitations by essentially tolling the running of the statute until the plaintiff was put on inquiry notice about her cause of action.  Put differently, "the cause of action accrues [and the statute of limitations begins running] when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another."  Nolan v. Johns-Manville Asbestos, 421 N.E.2d 864, 868 (Ill. 1981).

The court in Orso v. Bayer Corp., 2009 WL 249235 (N.D. Ill. Feb. 2, 2009) recently applied the discovery rule to grant summary judgment on statute of limitations grounds.  In Orso, plaintiff had been using Neo-Synephrine on a daily basis since 1990, despite the product's explicit warning that it should not be used for more than three days.  Plaintiff had visited a doctor in 1991, explaining that without Neo-Synephrine, "if someone were to put their hand over my mouth, I would have died . . . [My nose] is so swollen inside, I can't breathe."  Id. at *1.  The doctor recommended other medication and discussed strategies for giving up the medicine, but plaintiff returned to using it even though the doctor "'thought that [plaintiff] shouldn't be using it."

Nearly a decade later, in September 2000, a second doctor consulted with plaintiff.  He described plaintiff as having "'chronic rhinits with likely addiction (physiologic) to nasal decongestant drops.'"  Id.  The doctor prescribed a substitute medication and warned plaintiff of "rebound congestion," namely, that people coming off of medicines like Neo-Synephrine may develop severe congestion. 

Faced with the evidence, the court quickly concluded that plaintiff had been on inquiry notice much more than 4 years before filing suit in 2004:

The record shows that, possibly as soon as 1991 and definitely no later than September 2000, Urso knew that she had a medical condition, namely, a stuffy nose and breathing difficulties, that her condition was relieved only by the use of Neo-Synephrine, and that she felt she was unable to discontinue her use of Neo-Synephrine despite her doctors' advice and prescrptions for other drugs.

Id. at *4.

The court rejected plaintiff's arguments regarding her lack of knowledge, observing that the knowledge necessary to start the running of the statute of limitations does not require an accurate medical diagnosis or a definitive understanding of causation.  Suspicion starts the clock running, and the plaintiff is under a duty to conduct an inquiry to see if she has a cause of action.

Orso is unremarkable jurisprudentially, but it is a good workmanlike example of the discovery rule's application in statute of limitations motions.

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