BOSTON (Legal Newsline) - The U.S. Appeals Court for the First Circuit has ruled for Raytheon in a class action brought over beryllium.

Barry Genereux and various members of the Bettuchy, Balint and Genereux families claimed they were at risk for developing beryllium-related health effects due to exposure by Raytheon. However, the district court's summary judgment stated that there was no evidence that any of the plaintiffs had developed beryllium illnesses, according to the June 10 opinion.

Circuit judges Juan R. Torruella and Bruce M. Selya and District Judge Steven J. McAuliffe voted in the majority, with Selya authoring the opinion.

The plaintiffs bear the burden of producing evidence sufficient to preclude summary judgment and they "have not carried that burden here," the opinion states.

The plaintiffs were required to show a subcellular change and could not do so, according to the opinion, and, instead, began to argue an alternative theory.

"A familiar bit of homespun philosophy warns of the perils of attempting to change horses in midstream," the opinion states. "This admonition applies in litigation as well as in life. Thus, when a litigant commits to a theory of the case and sticks to that theory past the point of no return, he cannot thereafter switch to a different theory simply because it seems more attractive at the time. That is among the lessons of this appeal."

The plaintiffs filed the class action lawsuit claiming that Raytheon endangered their health and others' health by exposing them to beryllium used in the manufacturing process at its plant in Waltham, Mass.

The class action sought to compel Raytheon to establish a trust fund to finance appropriate medical monitoring that would include regular testing for beryllium exposure illnesses.

After extensive pretrial discovery and work devoted to a narrowing of the issues, the U.S. District Court for the District of Massachusetts granted summary judgment in favor of Raytheon.

"In complex cases, considerations of both fairness and efficiency dictate that a trial judge use his best efforts to winnow and clarify the issues," the opinion states. "In this case, Judge Wolf did exactly what was required. He was relentless in his insistence on ensuring that the parties shared a common vision of what issues were to be adjudicated; and he was fully entitled to rely on counsel's repeated assurances that the issue that the Donovan I court had 'le[ft] for another day' was not in the case."

Plaintiffs' counsel had multiple opportunities to expound a theory of the case that encompassed this issue, according to the opinion.

"He likewise had multiple opportunities to correct the judge's repeated declarations that the motion for summary judgment did not require adjudication of the question that the SJC had 'le[ft] for another day,'" the opinion states. "Plaintiffs' counsel let all of these opportunities slide. And far from disputing the court's understanding, counsel embraced it."

The plaintiffs told the court that they were not pursuing a theory based on the question that the Supreme Judicial Court had "le[ft] for another day."

"This is complex class action litigation, and the district court has the right - indeed, the duty - to ensure that such litigation proceeds in an orderly manner," the opinion states. "Holding the parties to the strictures of a scheduling order helps to achieve this goal. To say more would be pointless."

Given the totality of the circumstances, it beggars credulity for the plaintiffs to argue that the district court abused its discretion in striking the egregiously late 2012 declaration, according to the opinion.

"We need go no further." the opinion states. "We applaud the district court's handling of this complicated case and...the judgment is affirmed."

U.S. Court of Appeals for the First Circuit case number: 13-1921

From Legal Newsline: Kyla Asbury can be reached at

More News