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From Products Liability Law Daily, June 11, 2014

Denial of workers’ request for medical monitoring program to test for beryllium-related diseases upheld

By Pamela C. Maloney, J.D.

Finding that current and former employees of a major manufacturing company and members of their households failed to provide evidence of “subcellular” or physiological changes, the U.S. Court of Appeals for the First Circuit upheld the summary dismissal of their request that a medical monitoring program be set up to detect beryllium-related diseases. The First Circuit also refused to entertain the employees alternative theory of liability that a cause of action for medical monitoring under Massachusetts law does not require a showing of subcellular or physiological changes (Genereux v. Raytheon Co., June 10, 2014, Selya, B.).

Background. The employees at Raytheon Corporation’s facility in Waltham, Massachusetts, along with members of their households, alleged that the company negligently handled beryllium, exposing the workers directly, and their households indirectly, to elevated levels of the substance. As a result of these exposures, the employees and family members brought personal injury claims on behalf of two classes (those who had worked at the plant and all persons who lived with members of the first class) against several suppliers of beryllium and Raytheon, alleging that they had an increased risk of suffering from beryllium-related diseases, particularly Chronic Beryllium Disease (CBD). Although none of the plaintiffs exhibited any symptoms, they asked that Raytheon be ordered to fund a medical monitoring program that would include testing and preventative screening for beryllium sensitization (BeS), the first manifestation of subcellular change resulting from beryllium exposure. The district court granted Raytheon’s motion for summary judgment (sub nom.Genereux v. Hardric Laboratories, Inc. [Products Liability Daily analysis]) because there was no evidence that any named plaintiff or any particular member of either class represented by the named plaintiffs had contracted BeS. The employees appealed this decision.

Medical monitoring doctrine. The First Circuit, like the district court, cited to Donovan v. Philip Morris USA, Inc. (Donovan I), the Supreme Judicial Court of Massachusetts’ cornerstone decision recognizing a cause of action for medical monitoring and setting forth seven elements that must be proven in a medical monitoring claim. The First Circuit pointed out that the SJC “took pains to tether its holding to a doctrinal mooring: a combination of the defendant's failure to meet an appropriate standard of care, a causal connection between that failure and the plaintiffs' injuries, and resulting damages.” In order to prove an injury, one of the elements articulated by the SJC required proof that a plaintiff had been exposed to “a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury.” However, the employees’ expert could not confirm that any named plaintiff or member of either class had developed BeS and, thus, this element was not satisfied.

The employees also argued that testimony by their experts that all the plaintiffs were at a significantly increased risk for the development of beryllium-related health affects in relation to an unexposed population was sufficient to bring their claims within the scope of Donovan I. They based this claim on expert testimony presented in Donovan II that “everyone with a twenty pack-year smoking history has suffered subcellular harm [which] necessarily mean[s] increased risk of lung cancer.” (Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1 (E. Mass. 2010)) However, in this case, the class members shared no universal harm and, thus, the holding in Donovan II was of no help. The lack of evidence that any plaintiff — named or unnamed, employee class or take-home class—had as yet developed BeS was fatal to the plaintiffs' principal theory of liability, the First Circuit concluded, affirming the district court’s grant of summary judgment.

Alternative theory of liability. In what the First Circuit referred to as “attempting to change horses in midstream,” the employees claimed that the district court erred in rejecting their alternative theory of liability, i.e., that a cause of action for medical monitoring under Massachusetts law does not require a showing of subcellular or other physiological change. In support of this alternative theory, the employees argued that the SJC’s discussion of “subcellular change” was dictum. The First Circuit determined that in Donovan I, the SJC made it abundantly clear that it was only holding that a cause of action for medical monitoring would lie if a plaintiff could make a showing of subcellular or other physiological change and that the possibility of allowing a cause of action based on a mere increased risk was a question for another day.

Arguing further that this question which the SJC left for another day was implicated in this case, the employees challenged the district court’s holding that they had not preserved a claim under this alternative theory. However, the transcript of the status conference conducted by the district court in an attempt to clearly define the issues in the case contained repeated assurances by the plaintiffs’ counsel that the issue of whether a claim for medical monitoring might lie without proof of subcellular or other physiological change was not in this case. It was clear to the First Circuit that the employees made a “strategic decision to press a theory of the case that relied on the elements of a medical monitoring cause of action explicitly recognized in Donovan I, and having failed on that theory, they could not disavow their earlier decision and attempt to “change horses midstream in hopes of finding a swifter steed.”

The case number is: 13-1921.

Attorneys: Peter J. Ainsworth (Meehan, Boyle, Black & Bogdanow PC) for Barry Genereux. Jonathan M. Albano (Bingham McCutchen LLP), and Ronald M. Jacobs (Conn Kavanaugh Rosenthal Peisch & Ford LLP) for Raytheon Co. William F. Ahern (Clark Hunt Ahern & Embry) for American Beryllia Corp. Robert S. Faxon (Jones Day), and Alan M. Spiro (Edwards Wildman & Palmer LLP) for Brush Wellman, Inc. Kellie A. Cameron (Nadeau & Associates) for Hardric Laboratories, Inc. Sara P. Bryant (Murtha Cullina LLP) for Kyocera America, Inc.

Companies: Raytheon Co.; American Beryllia Corp.; Brush Wellman, Inc.; Hardric Laboratories, Inc.; Kyocera America, Inc.

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