Case Briefs

MA's Highest Court Allows Medical Monitoring Claims to Go Forward

In October, Massachusetts' highest court held, in Donovan v. Philip Morris USA, 914 N.E.2d 891 (Mass. 2009), that a group of plaintiffs may proceed with a suit against Philip Morris for future medical expenses incurred in monitoring for lung cancer. Although not at issue in the case, the decision has important insurance coverage implications.

The suit was filed in the United States District Court for the District of Massachusetts by a putative class which, among other things, alleges that its members have not been diagnosed with lung cancer, but have physiological changes to their lungs. The plaintiffs allege that Philip Morris wrongfully designed, marketed, and sold cigarettes, and assert claims for breach of implied warranty and violations Massachusetts' Consumer Protection Statute. Instead of seeking money damages, however, the plaintiffs seek a court-supervised program of medical surveillance for early detection of lung cancer utilizing a technology (low-dose computed tomography), which has only just become available as an effective screen for the disease.

Philip Morris filed motions to dismiss and for summary judgment, arguing that Massachusetts law requires a plaintiff to prove a present physical injury with objective symptoms to recover in tort, and that the plaintiffs' claims are barred by the statute of limitations because each plaintiff knew that he or she was at increased risk of lung cancer at least four years prior to the suit. To aid it in rendering a decision, the federal court certified two questions to the Supreme Judicial Court (“SJC”): 1) Does the plaintiffs' suit state a cognizable claim and permit a remedy; and 2) If so, has the statute of limitations claims expired?

The SJC first concluded that the plaintiffs stated a claim under Massachusetts law for medical monitoring, finding that Massachusetts tort law 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.” Accordingly, the court found that a plaintiff may establish injury by proving that “medical monitoring is necessary to detect the potential onset of a serious illness due to physiological changes indicating a substantial incease in risk of harm from exposure to a hazardous substance.” While no particular level or increase in risk of harm is necessary, it must be substantial, and there must be a corresponding cellular change. The court also ruled that plaintiffs who assert a medical monitoring claim will not be barred by the single controversy rule from asserting a future action for damages in the event they contract disease. The court further noted that a plaintiff “may” be entitled to reasonable attorneys' fees out of a fund created by a defendant, but did not clearly state the basis for such an award.

With respect to the second question, the SJC concluded that, if the plaintiffs proved that they had “absolutely no remedy until [the new] technology appeared,” then their unique claims are timely. The court added, however, that the plaintiffs also must show that “the standard of care of the reasonable physician did not call for monitoring of any precancerous condition prior to the statute of limitations period, not just that the technology at that time was less effective for monitoring.”

The SJC's reference in Donovan to a growing recognition that exposure to toxic substances may cause latent injury may lead to new cases extending well beyond tobacco. Defendants sued for medical monitoring may look to their commercial general liability insurers for coverage and the SJC's requirement that plaintiffs demonstrate a cellular change will likely lead defendants to argue that medical monitoring claims constitute covered bodily injury. Insurers, on the other hand, are likely to argue that there is no coverage because, by definition, a medical monitoring claim is not seeking damages on account of bodily injury, as required by the policy.

This month's Brief was written by Nicholas C. Cramb, an attorney in the Boston Office of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.

MA's Highest Court Allows Medical Monitoring Claims to Go Forward

In October, Massachusetts' highest court held, in Donovan v. Philip Morris USA , 914 N.E.2d 891 (Mass. 2009), that a group of plaintiffs may proceed with a suit against Philip Morris for future medical expenses incurred in monitoring for lung cancer. Although not at issue in the case, the decision has important insurance coverage implications.

The suit was filed in the United States District Court for the District of Massachusetts by a putative class which, among other things, alleges that its members have not been diagnosed with lung cancer, but have physiological changes to their lungs. The plaintiffs allege that Philip Morris wrongfully designed, marketed, and sold cigarettes, and assert claims for breach of implied warranty and violations Massachusetts' Consumer Protection Statute. Instead of seeking money damages, however, the plaintiffs seek a court-supervised program of medical surveillance for early detection of lung cancer utilizing a technology (low-dose computed tomography), which has only just become available as an effective screen for the disease.

Philip Morris filed motions to dismiss and for summary judgment, arguing that Massachusetts law requires a plaintiff to prove a present physical injury with objective symptoms to recover in tort, and that the plaintiffs' claims are barred by the statute of limitations because each plaintiff knew that he or she was at increased risk of lung cancer at least four years prior to the suit. To aid it in rendering a decision, the federal court certified two questions to the Supreme Judicial Court (“SJC”): 1) Does the plaintiffs' suit state a cognizable claim and permit a remedy; and 2) If so, has the statute of limitations claims expired?

The SJC first concluded that the plaintiffs stated a claim under Massachusetts law for medical monitoring, finding that Massachusetts tort law 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.” Accordingly, the court found that a plaintiff may establish injury by proving that “medical monitoring is necessary to detect the potential onset of a serious illness due to physiological changes indicating a substantial incease in risk of harm from exposure to a hazardous substance.” While no particular level or increase in risk of harm is necessary, it must be substantial, and there must be a corresponding cellular change. The court also ruled that plaintiffs who assert a medical monitoring claim will not be barred by the single controversy rule from asserting a future action for damages in the event they contract disease. The court further noted that a plaintiff “may” be entitled to reasonable attorneys' fees out of a fund created by a defendant, but did not clearly state the basis for such an award.

With respect to the second question, the SJC concluded that, if the plaintiffs proved that they had “absolutely no remedy until [the new] technology appeared,” then their unique claims are timely. The court added, however, that the plaintiffs also must show that “the standard of care of the reasonable physician did not call for monitoring of any precancerous condition prior to the statute of limitations period, not just that the technology at that time was less effective for monitoring.”

The SJC's reference in Donovan to a growing recognition that exposure to toxic substances may cause latent injury may lead to new cases extending well beyond tobacco. Defendants sued for medical monitoring may look to their commercial general liability insurers for coverage and the SJC's requirement that plaintiffs demonstrate a cellular change will likely lead defendants to argue that medical monitoring claims constitute covered bodily injury. Insurers, on the other hand, are likely to argue that there is no coverage because, by definition, a medical monitoring claim is not seeking damages on account of bodily injury, as required by the policy.

This month's Brief was written by Nicholas C. Cramb, an attorney in the Boston Office of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.