One of the basic tenets of American law is that, in order to recover in tort, a plaintiff must have suffered an injury. (1) While this principle for identifying cognizable claims remains, in recent years tort law has evolved in response to a world in which people regularly encounter environmental toxins, the effects of which are largely unknown. (2) As modern medicine continues to advance, the line between present illness and risk of future illness has blurred; prevention and early detection have become critical to the successful treatment of disease. (3) While prevention and early detection of disease are beneficial in the eyes of public health, courts have generally declined to expand tort law to recognize claims for increased risk of harm or to require defendants to pay for medical monitoring programs for asymptomatic plaintiffs. (4) In October 2009, however, in Donovan v. Philip Morris USA, Inc., (5) the Supreme Judicial Court of Massachusetts (SJC) recognized a cause of action for medical monitoring by plaintiffs who exhibited no symptoms or precursors to disease, but faced increased risk of contracting a lung disease from their use of cigarettes. Though this evolution is premised on the noble pursuit of early detection of disease, Donovan's recognition of a medical monitoring cause of action and the procedural allowances made for it could cause unruly and problematic effects.
Kathleen Donovan and Patricia Cawley began to smoke more than thirty years ago, continued to smoke after learning of the risks involved, and, "[b]y virtue of [their] age and prolonged and continuing use of Marlboro cigarettes, ... [allegedly] suffered damage to [their] lungs and [were] at elevated risk for lung cancer." (6) They filed suit in the U.S. District Court for the District of Massachusetts in December 2006. (7) The plaintiffs alleged that Philip Morris USA wrongfully designed, marketed, and sold Marlboro cigarettes, and further alleged breach of implied warranty on the basis of design defects and negligent design and testing. (8) The plaintiffs did not seek monetary damages, but instead sought an injunction creating a court-supervised medical monitoring program consisting of low dose spiral computerized tomography (LDCT) lung cancer screening. (9) Philip Morris USA responded by filing a motion to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (FRCP)--on the theory that the plaintiffs' claims failed to allege an actual "present physical injury with objective symptoms"--and Rule 56 for summary judgment--on the theory that the plaintiffs' claims were untimely since the plaintiffs knew of the "increased risk of lung cancer at least four years prior to the commencement of this action." (10)
Because of the "untested questions of [Massachusetts] state law presented by this action," District Judge Gertner certified two questions of law to the SJC. (11) Of interest to the district court was whether the plaintiffs--both of whom alleged subclinical physiological harm from smoking, though neither had developed lung cancer, were under suspicion of developing cancer, or had exhibited any outward symptoms of negative effects from smoking--could state a cognizable claim permitting a remedy under Massachusetts tort law. (12) The district court also inquired how to apply the statute of limitations to the claim. (13)
Justice Spina, writing for a unanimous SJC, held that the plaintiffs' allegations of subclinical effects on lung tissue constituted a legally cognizable injury on which their medical monitoring claim could be based and that the statute of limitations had not expired for their claim. (14) For the negligence analysis, the court first distinguished this case from one attempting to bring a claim for "the full range of tort damages" on the basis of "increased risk of cancer." (15) Instead, in the court's view, "plaintiffs [sued] only for medical expenses reasonably to be incurred because of the alleged negligence. …