In Donovan et al. v. Philip Morris USA Inc., No. 10-8025 (1st Cir. Sep. 1, 2010), a class of asymptomatic Massachusetts smokers sued the defendant cigarette manufacturer in the United States District Court for the District of Massachusetts asserting claims for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), negligence and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute) and seeking a court-supervised program of medical monitoring to detect early signs of lung cancer. Plaintiffs alleged that the cigarettes were defectively designed in that they delivered unreasonably high levels of carcinogens, thereby increasing the risk of cancer. Answering a certified question on defendant’s motions to dismiss and for summary judgment, the Massachusetts Supreme Judicial Court held that plaintiffs could state a damages claim for future medical monitoring expenses even though none of the putative class members presently suffered from any manifest smoking-related illness or disease (see May 2010 Foley Hoag Product Liability Update).

Thereafter, the federal district court approved plaintiffs’ motion for class certification for the implied warranty claims, but not their negligence claims, ruling that plaintiffs should be able to pursue the claims as a class even though they still had significant work to do in proving liability (see July 2010 Foley Hoag Product Liability Update). Defendant sought leave to appeal the class certification decisions under Fed. R. Civ. P. 23(f), arguing that an immediate appeal was appropriate because of the many novel and important issues in the lawsuit.

Among other issues, defendant argued that the district court erred in certifying the class under Rule 23(b)(2) because plaintiffs’ request for medical monitoring should not be considered injunctive relief, and the court erroneously focused on whether plaintiffs alleged a group injury as opposed to whether plaintiffs constituted a “cohesive” class. The United States Court of Appeals for the First Circuit, however, denied defendant’s petition for appeal on the basis that interlocutory review of the class certification order would not be more effective than a traditional appeal at the conclusion of the litigation, but would instead risk unnecessarily bogging down an already complex case. The appellate court explained that it would only allow interlocutory review based on the existence of novel issues if those issues could not effectively be reviewed at the end of the case.