By Alysson M .Gray, Esq.
On June 10, 2014, the United States Court of Appeals for the First Circuit (First Circuit) affirmed a ruling of the United States District Court for the District Court of Massachusetts (District Court) granting a motion for summary judgment in favor of the defendant in Genereux et. al. v. Raytheon Co.[i] The decision in Genereux results in a narrowing of protections extended to individuals exposed to dangerous substances during their employment. Although past precedent in Massachusetts signals that those exposed to dangerous substances during the scope of their employment may be eligible for employer-funded medical monitoring, the Court in Genereux held that a plaintiff must show evidence of a subcellular or physiological change in order to secure compensation for treatment.
The defendant, Raytheon, is a company based out of Waltham, MA that specializes in defense and security technology.[ii] The plaintiffs alleged that the defendant endangered the health of its employees and their families by negligently exposing them to beryllium[iii], a hazardous substance used in the manufacturing process at the Waltham plant. The plaintiffs sought a court order compelling the defendant to establish a trust fund that would provide for medical monitoring of beryllium sensitization (BeS) for two groups. The first class consisted “…of all persons who worked at the Waltham plant for at least one month prior to December 31, 1996.”[iv] The other group consisted “…of all persons who lived with members of the first class and thus were subject to take-home beryllium exposure.”[v] Employees already diagnosed with Chronic Beryllium Disease (CBD) were excluded from both classes.
The plaintiffs brought this suit in the District Court invoking diversity jurisdiction under the special jurisdictional provisions of the Class Action Fairness Act.[vi] The District Court granted the defendant’s motion for summary judgment and the plaintiffs appealed.
The First Circuit opinion delivered by Justice Selya addressed three issues:  whether a recovery for monetary funding for medical monitoring required evidence of subcellular or physiological change;  whether the District Court erred in denying the plaintiffs’ the ability to pursue an alternative theory of recovery; and  whether the District Court erred in denying the plaintiffs’ request to submit testimony from a supplemental expert witness.
The plaintiffs grounded their theory of recovery upon the ruling of the Massachusetts Supreme Judicial Court (SJC) in Donovan v. Philip Morris USA, Inc. (Donavan I).[vii] In Donovan I, the SJC awarded court-supervised medical surveillance funding for early lung cancer detection to plaintiffs who were long-term smokers but who had not yet developed lung cancer.[viii] In the absence of evidence showing that a plaintiff suffered from lung cancer, “the court demanded a showing of a subcellular or other physiological change has occurred, putting those plaintiffs at higher risk for developing lung cancer.”[ix] The District Court interpreted the SJC’s ruling to mean that a mere “increase of risk of illness caused by exposure, unaccompanied by some subcellular or other physiological change, is not enough to permit recovery in tort.”[x]
In upholding the decision of the District Court, the First Circuit found that the facts of Genereux fell outside the framework established by Donovan I regarding evidence of subcellular or physiological change. In reaching this decision, the Court relied upon the testimony of plaintiff’s expert, Dr. Lee S. Newman. Dr. Newman stated that although individuals who test positive for BeS generally are at a greater risk of contracting CBD, none of the plaintiffs, named or otherwise, had yet tested positive for BeS. In other words, none of the plaintiffs exhibited symptoms of BeS or CBD at the time of the dispute. The plaintiffs failed to show evidence of a universal harm suffered by the Raytheon employees indicating any subcellular or physiological changes resulting in an increased risk of developing CBD. Thus, the First Circuit found that the plaintiffs failed to meet the burden set forth in Donovan I.
The plaintiffs also argued that the District Court erred in denying their pursuit of an alternative theory of recovery based on dicta discussed in Donovan I.[xi] In that case, the SJC noted that “if a manufacturer exposes a person to a dangerous carcinogen, a cause of action for medical monitoring would lie even though no subcellular or other physiological change had yet occurred.”[xii] However, the SJC made no definitive ruling on the issue of latent symptoms and left that question “for another day.”[xiii] Both the District Court and the First Circuit concluded that such an alternate theory of recovery was inappropriate. The plaintiffs failed to acknowledge the theory during the extensive discovery process and even if such theory was presented timely, the plaintiffs’ interpretation of the SJC’s commentary was contrary to its decision. The First Circuit also found that the theory concerned a matter of state law and thus was an inappropriate topic for a federal venue.
The plaintiffs also contested the District Court’s denial of their presentation of a supplemental expert witness declaration arguing that the submission of the testimony, although filed thirteen months after the complaint, created no risk of prejudice against the defendant.[xiv] In upholding the finding of the lower court, the First Circuit held that the District Court acted within its power to limit the submission of the evidence noting that the presence or absence of prejudice is not the only factor a court considers in making the decision to allow untimely evidence. In this case, the Court found that not only did the plaintiffs fail to account for the late submission of the evidence, but also that there was a reason to believe the defendant would, in fact, suffer prejudice from the submission. The Court went on to explain that it is well within a court’s power to deny a request for a time extension to ensure efficiency within the system and prevent unnecessary delays of the docket.
In sum, the First Circuit upheld the District Court’s holding that Raytheon was not required to provide medical monitoring to its employees who were exposed to beryllium. This ruling narrowed the scope of Donovan I by requiring evidence of actual physiological or subcellular changes to an individual in order to bring a successful claim. This decision not only runs contrary to the dicta in Donovan I and its statement to leave the issue of latent symptoms “for another day,” but also places certain plaintiffs at a disadvantage. Even though modern medicine has proven that some illnesses remain dormant for years, these conditions nevertheless pose a threat to the infected individual. With the conclusion of this case, individuals possessing these Trojan-horse-like illnesses have less access to employer coverage for the costs of such proactive medical monitoring and treatment.
Alysson M. Gray, Esq. is a newly licensed attorney in Massachusetts and Rhode Island. She graduated Magna Cum Laude from the University of Massachusetts School of Law – Dartmouth in May of 2014. While in law school, she worked as a legal intern with both the Rhode Island Board of Medical Licensure and Discipline as well as the Rhode Island Office of Program Integrity. Alysson served as staff editor for the UMass Law Review and was a selected participant in the UMass Prosecution Clinic with the New Bedford District Court. She is a member of the American Bar Association and Boston Bar Association.
[i] Genereux et. al. v. Raytheon Co., 754 F.3d 51, 51 (1st Cir. 2014).
[ii] Our Company, Raytheon.com, (Nov. 10, 2014) http:// http://www.raytheon.com/ourcompany/.
[iii] Genereux, 754 F.3d at 54. Extensive exposure to beryllium may cause a medical condition called Chronic Beryllium Disease (CBD). Individuals suffering from CBD experience inflammation and scarring of the lung tissue as well as impaired organ function. Although there is currently no known cure for CBD, early detection and treatment can ameliorate its symptoms. By detecting the precursor condition to the disease, doctors are able to lessen the damage caused by exposure. The predicate to CBD is a medical condition called beryllium sensitization (BeS). Although BeS typically produces no physical manifestation and usually is not treated, doctors can detect the condition using a screening process called the beryllium lymphocyte proliferation test (BeLPT). Doctors recommend individuals exposed to beryllium undergo this screening process every three to five years. Only a test producing two positive results will medically confirm the patient has BeS. Once confirmed to have BeS, an individual is at high risk of developing CBD during his/her lifetime. Contracting BeS, however, does not necessarily mean the individual will later develop CBD.
[vi] Id. at 54; Fed. Civ. Pro. 28 USC §1332(d)(2).
[vii] Id. at 54. See Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. Sup. Ct. 2009) [hereinafter Donovan I].
[viii] Donovan I, 914 N.E.2d at 895, 901; Genereux., 754 F.3d at 54-55.
[ix] Donovan I, 914 N.E.2d at 901-902; Genereux, 754 F.3d. at 55.
[x] Genereux, 754 F.3d at 55.
[xii] Id. at 56; Donovan I, 914 N.E.2d at 901.
[xiii] Genereux, 754 F.3d at 55; Donovan I, 914 N.E.2d at 901.
[xiv] Id. at 60.