There is a scene in the movie 300 where King Leonidas greets the Persian messenger with, “Before you speak, Persian, know that in Sparta everyone, even a king’s messenger, is held accountable for the words of his voice.” Earlier this week, with its decision in Genereux v. Raytheon Co., No. 13-1921, the First Circuit effectively told the litigation bar the same thing.
The Massachusetts Supreme Judicial Court recognized an action for medical monitoring in Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009). There, the court reasoned that Massachusetts tort law must adapt to the recognition that toxic substances may cause substantial injury which should be compensable even if the full effects are not immediately apparent. In recognizing this action, the court noted that increased epidemiological risk of illness caused by exposure, unaccompanied by some subcellular or other physiological change, will not support recovery. The court, however, did leave “for another day” the possibility that, in certain circumstances, a medical monitoring claim might lie even in the absence of subcellular or other physiological change.
Genereux involved a claim for medical monitoring brought as a class action on behalf of two classes – (1) Raytheon employees who had been employed at Raytheon’s Waltham plant and exposed to beryllium as part of a manufacturing process, and (2) persons who lived with members of the first class who were thus subject to “take-home” beryllium exposure. Beryllium is a naturally occurring light-metal that is toxic to humans. Even modest exposure to beryllium can cause Chronic Beryllium Disease (CBD), which begins with beryllium sensitization (BeS).
On appeal from the District Court’s entry of a summary judgment in Raytheon’s favor, the First Circuit rejected the plaintiffs’ claim that their case fit squarely within Donovan’s subcellular change holding. Although the plaintiffs’ expert had opined both that BeS is the first manifestation of subcellular change resulting from beryllium exposure, and that the plaintiffs were at a significantly higher risk of CBD than the general population, there was no evidence in the record that any plaintiff in either class had yet developed BeS. The Court found that this evidentiary hole was fatal to the plaintiffs’ subcellular change theory.
The Court then turned its attention to the plaintiffs’ argument that the District Court improperly failed to consider their alternative theory that their claim fell within the question that Donovan had “le[ft] for another day.” The District Court had concluded that the plaintiffs failed to preserve a claim under the alternative theory and refused to consider it.
The First Circuit agreed, and here’s why: after the parties had filed their briefs in connection with Raytheon’s summary judgment motion, the District Court convened a status conference for the purpose of framing the issues presented by the pending motion before the oral argument. At the status conference, which was recorded by a court reporter, the District Court repeatedly stated its understanding that the plaintiffs were not pressing a claim based on the question that Donovan had “le[ft] for another day.” Every single time, plaintiffs’ counsel concurred in the court’s statement notwithstanding the fact that such a claim had been raised in the amended complaint and in the opposition to Raytheon’s motion. The First Circuit summed things up thusly: “Where, as here, counsel makes such representations to the trial court and to the lawyers for the opposing party, neither he nor his clients can complain when the trial court takes them at their word. Thus, the representations made at the status conference overrode any contrary suggestion that might have been contained in the plaintiffs’ earlier filings.”
So, in the clearest terms possible, the First Circuit has cautioned counsel that they are accountable for their representations to the court and that they and their clients will be bound thereby. The good news is that counsel is unlikely to join the Persian messenger at the bottom of the well.