In Genereux v. Hardric Laboratories, Inc., 2013 WL 3157520 (D. Mass. June 23, 2013), current and former employees of defendant aerospace and defense manufacturer, and members of their families, sued in the United States District Court for the District of Massachusetts alleging defendant’s negligent handling of beryllium at its plant exposed them to elevated levels of the substance and thereby increased their risk of various diseases, particularly chronic beryllium disease (“CBD”). None of the plaintiffs exhibited any CBD symptoms, so they sought a program of medical monitoring for CBD rather than damages. The court initially dismissed the claim for failure to allege actual injury, but reinstated it after the Massachusetts Supreme Judicial Court (“SJC”) decided Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009) (“Donovan I”) (see April 2010 Foley Hoag Product Liability Update), holding that a suit “for medical monitoring, based on . . . subclinical effects . . . state[s] a cognizable claim and/or permit[s] a remedy under Massachusetts state law.” The SJC held that the elements of this claim included, among other things, proof that “the plaintiff [was] exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury.”

Shortly after plaintiffs’ claims were reinstated, defendant moved for summary judgment on the basis that plaintiffs could not prove they had suffered subcellular changes from beryllium exposure. Plaintiffs’ expert had opined only that plaintiffs were at a significantly increased risk of developing berylliumrelated diseases, including associated subcellular changes, and admitted he could not state with any degree of medical certainty that any plaintiff had in fact already suffered such changes. Plaintiffs contended their evidence nevertheless was sufficient because Donovan I’s rationale was that persons exposed to dangerous substances and placed at an increased risk of harm should be entitled to medical monitoring, thus these were the only two essential elements of their claim.

At the outset, the court noted that it had not been requested to, nor would it, decide the issue the SJC in Donovan I said it would “leave for another day” – namely, “consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary although no symptoms or subclinical changes have occurred,” – as plaintiffs’ complaint specifically alleged subcellular change. Although plaintiffs’ expert opined plaintiffs had an increased risk of developing beryllium-related diseases, he could not opine that any plaintiff actually had suffered subcellular changes, or that beryllium exposure necessarily causes such changes in all cases (although he did try to amend his testimony to add this opinion - which the court did not allow because the amendment would have clearly conflicted with his prior sworn testimony – when it became clear such an opinion might help plaintiffs avoid summary judgment). Moreover, there was no evidence any plaintiff had tested positively for beryllium sensitization, the first detectable sign of subcellular change.

Accordingly, the court allowed defendant’s motion, holding “increased risk” of subcellular change insufficient to support medical monitoring because it does not satisfy Donovan I’s requirement of a physiological “impact” that fits the medicalmonitoring doctrine into traditional tort law rubrics and tempers the prospect of purely risk-based recovery. The court also noted that its decision was not inconsistent with the court’s class certification decision in Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1 (D. Mass. 2010) (“Donovan II”) (see July 2010 Foley Hoag Product Liability Update), not only because that case concerned class certification rather than summary judgment but, more significantly, because plaintiffs’ experts there had opined that “twenty pack-years of smoking necessarily causes subcellular harm” and that “everyone with a twenty pack-year smoking history has suffered subcellular harm.” (emphasis added).