Massachusetts Supreme Court Holds that Asymptomatic Plaintiffs May Sue for Medical Monitoring

In a recent opinion that bucks the national trend, the Massachusetts Supreme Judicial Court authorized plaintiffs who have no manifest physical injuries, but who assert “subcellular changes” caused by cigarette smoking, to sue for medical monitoring. Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009).

Plaintiffs in Donovan filed a putative class action in federal court on behalf of certain Massachusetts residents who smoke Marlboro cigarettes but “are not diagnosed with lung cancer or under investigation by a physician for suspected lung cancer.” Although plaintiffs asserted in the briefing that smoking caused “injury to the tissues and structures of their lungs,” they did not allege “any manifest smoking-related disease.” Instead, plaintiffs claimed only that they were “at a high and significantly increased risk of developing lung cancer.”

Asserting claims for breach of implied warranty, negligence, and violation of a Massachusetts consumer fraud statute, plaintiffs sought as a remedy “a court-supervised program of medical surveillance for early detection of lung cancer utilizing a technique known as low-dose computer tomography.” The defendant moved to dismiss the complaint, arguing that Massachusetts tort law requires plaintiffs to “plead and prove a present physical injury with objective symptoms.” The federal district court certified two questions to the Massachusetts Supreme Court, the first of which asked whether “plaintiffs’ suit for medical monitoring, based on subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state[s] a cognizable claim and/or permit[s] a remedy under Massachusetts state law.”

The Massachusetts Supreme Court answered “yes,” holding that allegations of “physiological changes with the attendant substantial increase in risk of cancer, and the medical necessity of monitoring with its attendant cost, may adequately establish the elements of injury and damages” and permit plaintiffs to recover “the cost of that monitoring ... in tort.” The court reasoned that it “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.” To obtain medical monitoring, the court stated that plaintiffs must prove the following elements:

(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 reasonable (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care.

The court answered the second certified question by holding that plaintiffs’ claims were not barred by the statute of limitations. The case now returns to federal court for further proceedings.

Donovan breaks from a recent trend—beginning with the US Supreme Court’s decision in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997)—rejecting medical monitoring claims for asymptomatic plaintiffs. In rejecting a medical monitoring claim under the Federal Employers’ Liability Act, the Buckley Court cited several factors that counsel against abandoning the physical injury requirement. The Court noted that due to the ubiquity of harmful substances in modern society, virtually everyone has a potential medical monitoring claim. The flood of litigation that would result from adoption of such a claim could, among other things, diminish defendants’ ability to compensate those who incur actual injuries, require courts to expend resources on administering medical monitoring programs at the expense of more pressing cases, and reduce the availability of scarce medical resources. Most post-Buckley cases follow its lead, leaving to legislatures the question of whether to adopt a medical monitoring claim for plaintiffs without manifest physical injuries.