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• DONOVAN v. PHILIP MORRIS USA, INC.  

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 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.

As previously discussed, medical monitoring expense is the plaintiffs' only arguably provable damages. They could not have sued for pain and suffering or lost earning capacity. This is not a case where plaintiffs recovered damages for pain and suffering, lost earning capacity, but only some medical expenses based on existing medical technology. These plaintiffs, or so they allege, had absolutely no remedy until LDCT technology appeared. If they can establish these circumstances, which are unusual and perhaps unique to medical monitoring claims, then their claims are timely. This is a question that cannot be resolved on the record before us; it must be resolved on a motion for summary judgment or, if genuine issues of material fact remain, by a jury. 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.

We answer the second certified question in the negative, subject to determination as we have outlined it.

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• SJC: Philip Morris may have to pay for diagnostic tests for smokers  

Massachusetts' high court said today that cigarette maker Philip Morris USA may have to pay for diagnostic chest exams so smokers can get early warning they have developed lung cancer.

In a unanimous ruling, the Supreme Judicial Court said that Massachusetts law has an antiquated definition of negligence that must be updated. Historically, plaintiffs had to show explicit injury -- such as a broken leg -- before the other party can be ordered to pay for diagnostic tests. Writing for the court, Justice Francis X. Spina said that legal thinking had to change.

"Modern living has exposed people to a variety of toxic substances," Spina wrote. "Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure."

Spina added, "Our tort law developed in the late 19th and early 20th centuries ...We 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." . . .

"The overwhelming majority of federal and state courts have rejected class certification of smokers' claims, including those seeking medical monitoring," Murray Garnick, Altria senior vice president and associate general counsel, said in a statement. "Six of the last seven state supreme courts to consider the issue have refused to recognize claims for medical monitoring based on the risk of future injury.''

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Modern living has exposed people to a variety of toxic substances. Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure. Our tort law developed in the late 19th and early 20th centuries . . . We 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.
MA Supreme Court Justice Francis X. Spina, writing for the court in the Donovan medical monitoring suit.

• Cancer-Free Smokers Can Sue Philip Morris, Court Says (Update1)  

Philip Morris USA can be sued by cancer-free smokers seeking a court order that the company pay for medical monitoring for signs of the illness, the highest court in Massachusetts ruled.

Answering two state-law questions referred to it by a federal court where the smokers proposed a group lawsuit is pending, the Massachusetts Supreme Judicial Court today ruled that the long-term yet cancer-free smokers can pursue their monitoring claim according to state law.

“We 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,” the high court said.

Philip Morris USA, the maker of Marlboro cigarettes, is a unit of Richmond, Virginia-based Altria Group Inc. In a statement issued by an in-house attorney, the company disagreed with the court’s findings.

The smokers’ suit was filed in 2006 by Massachusetts resident Kathleen Donovan and two other people living in the state.

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• SUPREME JUDICIAL COURT for the Commonwealth Case Docket: KATHLEEN DONOVAN & another vs. PHILIP MORRIS USA, INC. SJC-10409 

FUTURE CALENDAR

Tuesday, June 9th 2009, 9:00 AM

Courtroom One, Second Floor, John Adams Courthouse, One Pemberton Square, Boston . . .

03/05/2009 #1.1 Does the plaintiffs' suit for medical monitoring, based on the subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state a cognizable cliam and/or permit a remedy under Massachusetts state law? If the plaintiffs have successfully stated a claim or claims, has the statute or limitations governing those claims expired?

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