In this cautionary tale authored by Judge Selya, the First Circuit affirmed the district court’s award of summary judgment to defendant Raytheon Company in a putative class action in which Plaintiffs alleged that their health was endangered from exposure to beryllium, a chemical element that was used in Raytheon’s manufacturing process.  The decision contains an instructive interpretation of Massachusetts’ leading medical monitoring case law.  Equally if not more intriguing, the decision highlights the importance of litigation strategy and a lawyer’s “theory of the case,” a concept every law student learns but one that can fall victim to neglect in today’s fast-paced practice environment, where some litigants react to the battle of the day rather than plot the course to ultimate victory.  As the court cautions, attempting to “change horses in midstream” may prove perilous for the litigant, and “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.”  

Plaintiffs alleged that Raytheon endangered their health by negligently exposing them to beryllium.  They claimed that beryllium exposure causes Chronic Beryllium Disease (CBD), which can impair organ function, that the pathogenesis of CBD begins with beryllium sensitization (BeS), and that persons with BeS should receive periodic screenings to detect onset of CBD.  

Plaintiffs sought to represent two proposed classes.  One comprised all persons who worked at Raytheon’s Waltham, Mass. plant during the relevant time period, and the other class comprised all persons who lived with members of the first class and thus allegedly were subject to “take-home” beryllium exposure.  The action sought to compel Raytheon to establish a trust fund to finance medical monitoring for both classes. 

After extensive discovery, the district court granted summary judgment in favor of Raytheon.  Plaintiffs argued that their case fit within the confines of Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009) (Donovan I).  In Donovan I, Plaintiffs sought to compel court-ordered medical monitoring for early cancer detection on behalf of a class of persons who had smoked.  The Massachusetts Supreme Judicial Court held that, even though Plaintiffs lacked traditional tort injuries as the effects of smoking were not apparent, medical monitoring may be recoverable in tort in such a situation.  As the First Circuit noted, the “Donovan I court took pains to tether its holding to a doctrinal mooring” and demanded “a showing that some subcellular or other physiological change has put [Plaintiff] at increased risk.”  The Donovan I court pondered, but ultimately left “for another day,” the question whether a cause of action for medical monitoring would lie absent subcellular change.

Plaintiffs in Genereux argued that their case aligned with Donovan I and presented expert testimony that BeS is the first manifestation of subcellular change resulting from beryllium exposure.  Plaintiffs’ expert, however, could not confirm that any named Plaintiff or class member actually exhibited BeS.  In Donovan I, in contrast, Plaintiffs had presented expert testimony that everyone with significant smoking history has suffered subcellular harm. The District Court in Genereux found this “gap in proof” fatal to Plaintiffs’ liability theory because, without any evidence of subcellular harm, Donovan I precluded recovery. 

Faced with almost certain defeat, Plaintiffs switched gears and argued that a cause of action for medical monitoring under Massachusetts law does not require a showing of subcellular change because (1) Donovan I did not require a showing of subcellular change as an element of a cause of action for medical monitoring, and (2) whether a cause of action can lie when Plaintiffs have no subcellular changes was left open in Donovan I. 

The court rejected Plaintiffs’ first argument on the basis that Donovan I clearly held that subcellular change is required.  As to Plaintiffs’ “question for another day” argument, the Court upheld the District Court’s refusal to consider the argument on the grounds that Plaintiffs had not preserved a claim under this eleventh-hour, alternative theory.  The District Court record was replete with instances where the court sought to frame the issues presented on summary judgment and Plaintiffs repeatedly stated that they were not pursuing the “question for another day” theory.  As the First Circuit held, “Plaintiffs’ counsel had multiple opportunities to expound a theory that encompassed” the “question for another day” issue but “let all of these opportunities slide.”  

Perhaps realizing that their theory was doomed, Plaintiffs attempted to offer in opposition to summary judgment a supplemental expert witness declaration testifying that beryllium always causes subcellular changes, but the district court struck it as untimely.  While we don’t know the facts and circumstances leading Plaintiffs to so vehemently wed themselves to a single theory at the summary judgment stage, this opinion serves as a reminder that litigation is as much about developing a consistent case strategy and playing your cards wisely as it is about the facts you are dealt and the law you must apply.  Of course, in hindsight, it’s easier to identify any party’s missteps, but looking far down the litigation path so as to avoid “switch[ing] to a different theory simply because it seems more attractive at the time,” is, as Judge Selya notes “among the lessons of this appeal.”