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We used to spend a lot of time defending against medical monitoring claims – cases where the plaintiff has not suffered any actual injury, but claims he or she is at risk of a future injury and demands that the defendant pay for future medical surveillance.  We do not, however, see these kinds of cases so much anymore.  The plaintiffs’ bar seems to have figured out that there is little money in medical monitoring in the drug and medical device context because the claimed future monitoring – say an annual blood test – often costs only a few hundred dollars.  Medical monitoring cases therefore pencil out for the plaintiffs’ attorneys only when brought as class actions.

But medical monitoring class actions don’t work either.  Every plaintiff treated with a drug or medical device has a medical condition, usually requiring follow-up medical care.  The trick then is determining which follow-up (if any) is attributable to a drug or device risk and which is attributable to the plaintiff’s existing medical condition.  You also have to look at the adequacy of the warnings, and at their impact, and at what monitoring the patient might actually need, and at whether the claimed monitoring actually promises medical benefit, etcetera, etcetera.  Because these will be different inquiries for every patient, individual issues are the undoing of medical monitoring class actions, which is why they don’t get filed anymore.

We provide this preface because of the latest rejection of medical monitoring, this time in the First Circuit.  The plaintiffs in Genereux v. Raytheon Co., No. 13-1921, 2014 WL 2579908 (1st Cir. June 10, 2014), claimed workplace exposure to beryllium.  (Yes, we know it’s not a drug or medical device, but it’s a really interesting opinion with crossover appeal, so bear with us.)  Beryllium is a useful substance with known hazards:  Exposure can cause Chronic Beryllium Disease, which damages the lungs and can impair organ function.  Id. at *2.  The precursor to Chronic Beryllium Disease is something called “beryllium sensitization,” which is regarded as a testable, abnormal medical finding.  People with multiple positive tests for beryllium sensitization are at a higher risk of Chronic Beryllium Disease.  Id.

The critical part of Genereux is that the plaintiffs claimed neither beryllium sensitization nor Chronic Beryllium Disease.  No injury at all.  Nothing.  Nada.  Zilch.  How do we know that?  Because the plaintiffs’ expert said so – he could not confirm that any plaintiff or any class member had developed even the precursor condition.  Id. at *3.

The plaintiffs therefore were asserting true no-injury medical monitoring claims.  When a plaintiff has an actual injury, we have no problem with the recovery of reasonable and provable future medical expenses (when liability is established).  That has long been a recognized remedy under most any state’s tort law.  When, however, a plaintiff can recover damages without proving any demonstrable physical injury or condition, the law has become unhinged.  1980’s rock band Dire Straits memorialized the concept in a song with a most excellent guitar riff:  “Money for Nothing.”

We love the song, but condemn the sought result, and so did the First Circuit in an opinion setting forth Massachusetts law with admirable discipline.  Some people say that Massachusetts law recognizes medical monitoring claims, citing a case called Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009).  But that is not really true.  As the First Circuit explained, Massachusetts law requires evidence that the plaintiff suffered an injury or at least some physiological impact:

The [Massachusetts Supreme Judicial Court] took pains to tether its holding to a doctrinal mooring: a combination of the defendant’s failure to meet an appropriate standard of care, a causal connection between that failure and the plaintiffs’ injuries, and resulting damages.  To identify the injury in the absence of evidence that a plaintiff actually has cancer, the court was careful to demand a showing that some subcellular or other physiological change has put him at increased risk.  Under the cause of action recognized . . . , increased epidemiological risk of illness caused by exposure, unaccompanied by some subcellular or other physiological change, is not enough to permit recovery in tort.

Id. at *2 (citations omitted, emphasis added, discussing Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009)).  An actually injury therefore is required, although a “subcellular” one will do.  (As a side note, we saw what some plaintiffs’ experts had to say about “subcellular” injury in cases involving heart valves, and let’s just say we were unconvinced that such an injury can really exist.)  Indeed, rather than approve a cause of action in the absence of any identifiable injury, the Massachusetts Supreme Judicial Court left that issue “for another day.”  Id. at *3.

The plaintiffs in Genereux tried to have their “day” in the district court and then in the First Circuit, but neither court played along.  Affirming summary judgment for the defendants, the First Circuit cited the plaintiffs’ expert’s admissions and held the plaintiffs could not sustain a state law claim based on risk alone.  According to the First Circuit, “Risk and harm are two materially different concepts.”  Id.
The First Circuit also declined the plaintiffs’ invitation to expand Massachusetts state law to allow their no-injury claims.  As noted, the Massachusetts Supreme Judicial Court left the issue “for another day.”  And while some courts would view that as an engraved invitation to fill a legal gap, the First Circuit showed the kind of Erie restraint that serves as an example for every federal judge sitting in diversity:
To cinch matters, the court made it abundantly clear that it had considered the possibility of allowing a cause of action based on a mere increased risk, but opted to leave that question “for another day.”  [¶]  Where state tort law is at issue, policy considerations are best reconciled by state courts.  The SJC is the final arbiter of Massachusetts law, and a federal court sitting in diversity jurisdiction has no roving writ to rewrite that court’s pronouncements about state law.  Nor can a federal court make an end run around this boundary by relabeling as dictum what is undeniably a part of a state court’s holding.  Consequently, we decline the plaintiffs’ brash invitation to cast aside the SJC’s unambiguous language.
Id. at *4 (citations omitted, emphasis added).  Although the court did not cite Erie, this is as good an embodiment of Erie as we have seen.  It is particularly strong because the First Circuit deferred not just to a state’s highest court, but deferred in an area where the state’s highest court had expressly reserved judgment.  That is restraint upon restraint, and we like it.
It seems these plaintiffs knew that their class action’s days were numbered, as they tried mightily to steer their ship in a different direction.  They attempted to argue on appeal that they actually had presented the question of whether a claim for medical monitoring might lie when no symptoms or sub-clinical changes have occurred, thus permitting the First Circuit to take up and decide that issue.  Id. at *5.  But the First Circuit harshly disagreed, noting that the “district court wisely arranged to have a court reporter record the [relevant] status conference and the transcript belies the plaintiffs’ exercise in revisionist history.”  Id.  Ouch.
The plaintiffs also tried to submit a supplemental expert declaration thirteen months after expert submissions were due; tried to file an untimely and unauthorized surreply brief; and requested leave to present live evidence at the summary judgment hearing.  Id. at **7-8 & n.5.  The district court allowed none of it, and the First Circuit agreed, noting that it “applaud[ed] the district court’s handling of this complicated case.”  Id. at *8.
We applaud the district court and the First Circuit.  Some on the other side may hail Genereux v. Raytheon as “recognizing” medical monitoring under Massachusetts law, but that gloss on the opinion will not hold up.  The opinion toes the line set in Massachusetts state law and leaves plaintiffs with neither symptoms nor sub-clinical physiological changes without a claim.  Money for nothing?  Not here.

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