United States District Court Judge Mark L. Wolf recently denied the “medical monitoring” claims of a putative class alleging beryllium exposure. This is the first decision addressing medical monitoring claims in Massachusetts since the landmark Donovan ruling in 2009, and strengthens the restrictions on such claims.
Medical monitoring claims, a relatively modern addition to tort law, seek monetary damages for medical testing required after toxic exposure. States increasingly allow medical monitoring claims to proceed. However, a divide remains between courts which require evidence of physical injury and those which require only evidence of increased risk of injury. In Donovan v. Philip Morris USA Inc., 455 Mass. 215 (2009), Massachusetts’ highest court ruled that medical monitoring claims are allowed, as long as evidence of physiological, or “subcellular,” changes are present.
In Donovan, plaintiffs sought to represent a class of symptom-free smokers and asked the court to order medical monitoring. Philip Morris sought dismissal of the medical monitoring claims based on the lack of injury to any of the plaintiffs. On the question of whether medical monitoring claims are valid under Massachusetts law, the U.S. District Court certified the question to the Supreme Judicial Court.
The primary dispute: whether plaintiffs must establish physical injury to sustain their claims, or merely an increased risk of injury. The SJC ruled that plaintiffs can sustain a medical monitoring claim in Massachusetts by proving seven elements, including: “[exposure] to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury.” Donovan at 226. The requirement of “subcellular,” or physiological, changes was a departure from the law of many other states. While the Donovan decision confirmed that medical monitoring claims could be brought in Massachusetts, it also restricted such claims to plaintiffs who had suffered actual physical damage.
Fast forward two years. This past June, U.S. District Court Judge Mark L. Wolf granted a defendant summary judgment in the first medical monitoring decision to be addressed in Massachusetts since Donovan. In the consolidated cases of Betucchy, et al. v. Raytheon Co. (1:10-cv-11652) and Genereux v. Hadric Laboratories Inc. (04-cv-12137), plaintiffs sued Raytheon for, among other things, medical monitoring costs associated with exposure to beryllium at Raytheon’s Waltham facility. Their complaints alleged that Raytheon’s improper handling of the chemical increased their risk of developing Chronic Beryllium Disease (“CBD”). None of the members of the putative class exhibited any signs or symptoms of CBD, and none had received abnormal results on the BeLPT, the test for that disease.
Raytheon moved for summary judgment, claiming that the plaintiffs failed to produce any evidence of the “subcellular change” required by the SJC in Donovan. In granting Raytheon’s motion, Judge Wolf examined the plaintiffs’ only evidence: the testimony of plaintiffs’ expert. The expert could not conclude that any of the plaintiffs suffered subcellular changes, nor did he find that any plaintiff had abnormal BeLPT tests. Finally, he had testified that increased exposure to beryllium does not necessarily lead to subcellular change, but only an increased risk of subcellular change.
Judge Wolf ruled that the plaintiffs’ expert’s opinion did not meet the “subcellular change” requirement established by the SJC. He acknowledged that the SJC had left open the possibility of cases in which subcellular change would not be required. However, the claims in this case could not be considered as such because plaintiffs’ complaints specifically alleged “subcellular changes to [their] persons.” In addition, Judge Wolf upheld the SJC’s reasoning that the “subcellular change” requirement acts as a check on plaintiffs’ ability to seek medical monitoring merely on the basis of increased risk of harm. The requirement of physiological change, in other words, ties the modern doctrine of medical monitoring in with traditional elements of tort law: physiological changes establish the element of injury and damages.
The Take Away
While the trend has been for courts to allow medical monitoring claims, defendants must utilize well-reasoned opinions, such as Betucchy to push for clearly-defined restrictions on such claims, such as a requirement that plaintiffs demonstrate some physical harm, even if that harm consists of only subcellular changes.