In a decision rendered in the context of a cigarette product liability case but with broad implications for product manufacturers and sellers, the Massachusetts Supreme Judicial Court (“SJC”) has recognized a cause of action for the projected costs of medical monitoring when a product has not caused any actual disease or illness but solely subclinical physiological changes associated with an increased risk of disease. Plaintiffs in Donovan v. Philip Morris, USA, Inc., SJC-10409 (Mass. October 19, 2009), filed suit in the United States District Court for the District of Massachusetts seeking to pursue a class action on behalf of all Massachusetts residents age 50 or older with histories of having smoked defendant’s cigarettes for twenty or more pack-years, asserting claims for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), negligence and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute) based on the cigarettes’ allegedly defective design in delivering unreasonably high levels of carcinogens.
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