Mass. SC sides with smokers in medical monitoring issue

John O'Brien Oct. 20, 2009, 2:39pm


BOSTON (Legal Newsline) - The Massachusetts Supreme Court has allowed cigarette smokers in a federal class action lawsuit to continue pursuing medical monitoring costs from tobacco giant Philip Morris.

The Supreme Court, in response to two questions certified by a federal court, said Tuesday the plaintiffs' claim for medical monitoring is cognizable and their lawsuit was filed in a timely manner.

The class is made up of individuals who smoked for more than 20 years and do not show signs of lung cancer.

"When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort," Justice Francis Spina wrote for the unanimous court.

"Medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease.

"The expense of medical monitoring is thus a form of future medical expense and should be treated as such."

The opinion states that each plaintiff must prove negligence on the part of Philip Morris has caused he or she to become exposed to a hazardous substance, and that early detection is necessary and will significantly decrease the severity of an illness.

Critics of medical monitoring say it should be authorized by a state's legislature, not its courts. The West Virginia Chamber of Commerce recently submitted policy papers to the Legislature that ask it to prohibit the claim.

In one high-profile case, DuPont was ordered to pay $130 million for medical monitoring of Harrison County residents who lived near a zinc-smelting plant that allegedly contaminated the ground.

"Modern living has exposed people to a variety of toxic substances," Spina wrote.

"Our tort law developed in the late 19th and early 20th centuries, 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."

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