The U.S. Court of Appeals for the First Circuit recognizes medical monitoring as a viable tort remedy. But that doesn’t mean medical monitoring class actions are easy to win in that jurisdiction, as the appeals court reminded a group of former Raytheon Company employees Tuesday.
In a 21-page decision, the First Circuit affirmed the dismissal of a class action lawsuit seeking to require Raytheon to set up a trust fund to pay for medical screening of plant workers who say they were exposed to dangerous beryllium dust and fumes. Affirming U.S. District Judge Mark Wolf in Boston, the appeals court ruled that the plant employees failed to show they’d suffered the sort of harm required to put a defendant on the hook for medial monitoring.
In a 2009 case called Donovan v. Philip Morris USA, the Supreme Judicial Court of Massachusetts held for the first time that the cost of medical monitoring is recoverable in tort cases. To prevail, plaintiffs need to show “subcellular” changes to their bodies—in plain English, medical warning signs of an increased risk of developing disease. The cigarette smokers in Donovan showed that their lung tissue underwent physiological changes that increased the risk of cancer.
Bolstered by that ruling, Golomb & Honik brought a class action against military contractor Raytheon in 2010. The plaintiffs firm sought to represent a class of Raytheon employees that worked at the company’s manufacturing plant in Waltham, Mass., before 1996 and their family members. The class members claim they were exposed to Beryllium while manufacturing Raytheon aviation and communication systems products, and this exposure puts them at a heightened risk of developing a condition called beryllium sensitization that can lead to organ problems.
Raytheon, represented by Bingham McCutchen and Conn Kavanaugh Rosenthal Peisch & Ford, won a summary judgment ruling in 2013. Wolf found that the plaintiffs’ expert failed to show that the beryllium exposure led to physiological damage in the plaintiffs. According to a blog post by lawyers at Manion Gaynor & Manning, who were not involved in the case, Wolf’s ruling was the first decision addressing medical monitoring claims in Massachusetts since Donovan.
On appeal the plaintiffs argued that Donovan doesn’t require a showing of physiological damage, and that the court’s discussion of such damage was dicta. First Circuit Judge Bruce Selya not only rejected that argument, but faulted plaintiffs counsel for raising it too late. “Plaintiffs counsel time and again expressly represented to the court that the plaintiffs’ case depended on their ability to prove subcellular change,” Selya wrote. “That theory having failed, they cannot now disavow their earlier decision and attempt to change horses midstream.”
Jonathan Albano of Bingham argued the appeal for Raytheon.
None of the lawyers returned a call seeking comment.