First Circuit Court of Appeals Refuses to Relax Injury Requirement for Medical Monitoring Claims


[author: Alexander Guney*]

In Genereux v. Raytheon Co., No. 13-1921, 2014 WL 2579908 (1st Cir. June 10, 2014), the First Circuit Court of Appeals affirmed summary judgment against class action plaintiffs seeking recovery for medical monitoring costs based on their exposure to beryllium at Raytheon’s plant in Waltham, Massachusetts.  The First Circuit held that, under Massachusetts’ law, “[r]isk and harm are two materially different concepts,” and that increased risk alone cannot support recovery.

Exposure to beryllium can cause Chronic Beryllium Disease (CBD), a chronic inflammation of the lungs.  Early detection of beryllium sensitization (BeS), an abnormal but asymptomatic medical finding, is one key to the effective treatment of CBD, and current medical practice calls for persons exposed to beryllium above background levels to be screened every three to five years using a beryllium lymphocyte proliferation test.  Based on their exposure to beryllium from the Waltham plant, the plaintiffs sought to compel Raytheon to establish a trust fund to finance their medical monitoring.

The plaintiffs relied on Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009), which established that, prior to onset of disease, medical monitoring costs may be recoverable in a tort suit upon “a showing that some subcellular or other physiological change” has placed the plaintiff at increased risk.  The Donovan court declined to address whether, absent some physical manifestation of change, increased risk of injury alone was enough to permit recovery.  Applying Donovan, the district court granted Raytheon’s motion for summary judgment because the plaintiffs could not establish that they suffered subcellular change as a result of their exposure to beryllium.  See Genereux v. Hardric Labs., Inc., 950 F. Supp. 2d 329, 341 (D. Mass. 2013)

The plaintiffs appealed, asserting that there was a sufficient showing of physiological change to support recovery, or alternatively, that evidence of a physiological change is not required.  The First Circuit dismissed the first claim, finding, like the district court, that there was no evidence of actual harm.  Although the plaintiffs’ expert testified that the class was at “significantly increased risk” of harm, he could not establish that any member had developed BeS or suffered any subcellular change.  The court affirmed that increased risk is a “materially different concept[]” from actual harm and insufficient to support recovery. 

The plaintiffs also alleged that subcellular or other physiological change was not a requirement for recovery.  The court rejected this argument as an incorrect interpretation of Donovan, which not only listed physiological change as one of the seven elements of the cause of action, but also found physiological change to be the triggering point for accrual of the claim.

Furthermore, the First Circuit noted that the plaintiffs’ counsel had repeatedly assured the district court judge that they would not ask the court to address whether the plaintiffs could recover absent some physiological change—the question Donovan declined to address.  Thus, the plaintiffs failed to preserve the issue, and the First Circuit refused to address it on appeal.

In a final procedural matter, the plaintiffs claimed that the district court erred in excluding a supplemental expert declaration in opposition to the defendant’s motion for summary judgment.  The appellate court explained that the plaintiffs filed the declaration 13 months after the deadline for expert witness submissions, and that a district court has an interest in maximizing efficiency while minimizing prejudice to the parties.  Thus, the district court acted within its discretion, and the exclusion of the late declaration was a reasonable sanction for the plaintiffs’ failure to comply with the court’s deadlines. 

*Alexander Guney is a Summer Associate in Sedgwick's San Francisco office.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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