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Thursday, October 6, 2016

Big Tobacco wins in Mass. trial for medical monitoring

Big Tobacco's Philip Morris prevailed in a product liability jury trial in Massachusetts in late September.  Hat tip: Torts Today.

The litigation started in 2006 with Massachusetts Marlboro smokers not alleging physical illness as such, but seeking medical monitoring in the form of "Low Dose CT Scanning of the chest" to early detect lung cancer.  State law in the United States has been increasingly receptive to medical monitoring as a form of award in mass tort cases, though a division has emerged in the jurisdictions between acceptance and rejection of the theory.  An award of medical monitoring essentially recognizes a civil wrong upon a modicum of extant physical injury, so raises concerns about the appropriate scope of tort liability.  If the tort system becomes too far detached from substantial, quantifiable loss, we worry about susceptibility to fraud, incentives to over-litigiousness, reliability of the courts to resolve disputes, and ultimately whether tort law will so pervade our lives that we fear liability for causing hurt feelings.

In the decade of litigation in this PM case, the federal court certified questions to the Massachusetts Supreme Judicial Court to ascertain whether Massachusetts law recognizes a medical monitoring claim, and if so, when the statute of limitations period begins to run.  The SJC found its way to answer the first question in the affirmative in 2009 (455 Mass. 215).  The Court at that time wrestled with the physicality question, opining that indeed, "[n]egligence in the abstract does not support a cause of action" (quoting precedent).  But the Court found enough of a physical-injury hook on which to hang its hat.

"Our tort law developed in the late Nineteenth and early Twentieth centuries," the SJC wrote in 2009, "when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent."

So there is physical injury, the Court explained further:
Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring.  Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff's reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes. 

The Court set out the plaintiff's burden--in equity, rather than in tort--to prove:
(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint [grammatical non-parallelism in original!]. 
Expert testimony is "usually" essential.

On the second certified question, the Court found that the statute of limitations could afford some play room.  The Court ruled that plaintiffs' claims could come within the limitations period if the remedy sought, monitoring by low-dose CT scan, represented a new technological remedy where no remedy was previously available.  Moreover, this equity action would not preclude a later tort action, should cancer manifest and be detected.  The discovery rule would not run the limitations period on the cancer action until detection.

But all for naught in the end, in this case at least.  Back in federal court in September 2016, the jury rejected the plaintiff's claim of design defect in Marlboro cigarettes under the "RAD" test.  A design defect is a kind of product defect that may be said to occur when a product is properly made, because the failure is in the design itself.  RAD is a way of testing for design defect by asking whether the manufacturer could have availed of a "reasonable alternative design" that would not have contained the same injury-causing defect as the design that was employed.  Specifically, applying Massachusetts law, the federal court required the plaintiffs "to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer)."  Plaintiffs could not meet that burden.

The case also involved a "93A" claim, referring to Mass. Gen. Laws ch 93A, an important statutory claim in Massachusetts tort law that can sometimes give a plaintiff an alternative route to a win and can generate a multiplier on damages.  Formally 93A is a consumer protection statute, but unusually broadly drawn, it appears routinely as a companion to conventional tort claims.  However, there was no alternative route in this case, and the 93A claim failed upon the collapse of the design-defect theory.

The case is Donovan v. Philip Morris, No. 1:06-cv-12234-DJC (D. Mass. Sept. 22, 2016).  Here is the court Order:
Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with D. 540, 569 and 733, the Court reserved judgment on Plaintiffs' c. 93A claim against Defendant Philip Morris. This claim, as both parties acknowledge, is premised upon the breach of implied warranty of merchantability (i.e., the design defect claim). D. 29 at ¶¶ 100-110; D. 736 at 2; D. 725-1 at 3 (noting that a breach of warranty claim generally constitutes a violation of c. 93A and cases cited). It was the design defect claim for which a jury, after a contested and well-tried case by both sides, found Philip Morris, not liable. D. 718 (verdict form). Having considered the evidence presented at trial and the parties' proposed findings of fact and conclusions of law, 725, 736, 740 (Plaintiffs' reply), the Court renders judgment for Philip Morris on the c. 93A claim and makes the following findings and conclusions.

The jury found for Philip Morris on the design defect claim, finding in the first instance that Plaintiffs failed to show that Marlboro cigarettes produced by the Defendant are defective and unreasonably dangerous. D. 718 at 1. The court finds that the Plaintiffs failed to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer) and that the Defendant's failure to adopt a safer, feasible alternative design was unreasonable. The Court adopts the Defendant's proposed findings of fact, D. 736 at ¶¶ 14-82 in this regard.

Having found and concluded that Plaintiffs failed to prove this first, requisite element of the breach of implied warranty of merchantability claim, the Court need not address the remaining elements of that claim. D. 715 at 159-60 (jury charge addressing elements of design defect claim). Since this claim was the basis of the alleged unfair and deceptive act under c. 93A, the Court concludes, by a preponderance of the evidence and based upon the same findings of fact, that Plaintiffs c. 93A claim fails as well.

Accordingly, the Court shall enter judgment for Defendant Philip Morris as to the c. 93A claim (Count III). (Hourihan, Lisa) (Entered: 09/22/2016)

Full disclosure: I served on the Philip Morris litigation team many, many years ago.

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