Archive for October 19th, 2009

Robert J. Ambrogi of Legal Blog Watch posted this article today discussing the Supreme Judicial Court of Massachusetts’ decision holding in Donovan v. Phillip Morris USA, which recognized the viability of a claim seeking medical monitoring as a remedy for smokers who do not have lung cancer but have an increased risk of lung cancer due to their use of cigarettes.  As Ambrogi points out, the case is brought on behalf of a would-be class, but it has not yet been certified as a class action.  The court was careful to tailor its analysis of the sufficiency of the complaint to the present procedural posture of the case, pointing out that the issue should be considered as if it were a simple dispute between individual parties, not as a claim brought on behalf of a putative class of consumers, stating:

With respect to the first certified question the plaintiffs allege and argue that they seek not a remedy, but a court-ordered, court-supervised program of medical surveillance for early detection of lung cancer utilizing LDCT scans. They further contend that without this program they have no adequate remedy at law, and that injunctive relief establishing such a program is necessary. No class has been certified, and the first certified question asks only if the complaint states a cognizable claim under Massachusetts law. We therefore consider the question in the context of a dispute between two individuals, and leave the idea of a “program” to consideration of the question of class certification. See Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 977- 978 (Utah 1993), quoting Friends For All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 825 (D.C.Cir.1984) (when deciding “whether tort law should encompass a cause of action for diagnostic examinations without proof of actual injury, it is useful to step back from the complex, multi-party setting of the present case and hypothesize a simple, everyday accident involving two individuals”). We address only the named plaintiffs and their individual claims. We conclude that the plaintiffs have stated a claim under Massachusetts law for future medical expenses that may be satisfied by an adequate remedy at law.

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