In this case some former employees of Raytheon and their family members sought to impose on the company the costs of their being monitored for possible future chronic beryllium disease. The plaintiffs claim that the employee plaintiffs were exposed to beryllium at a Raytheon plant and that their family members were exposed to it secondhand, on the persons of the employees.
In Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009) (“Donovan I”), the Supreme Judicial Court held that when a defendant negligently exposes a plaintiff to a substance capable of causing a disease, the plaintiff may have a cause of action in tort even though he does not suffer from the disease. Under Donovan I, the plaintiff’s relief would be that the defendant must bear the medical costs of monitoring the plaintiff for signs of the disease’s possible future advent. But before a defendant can be held liable for these costs, the plaintiff must prove that he presently exhibits at least subclinical, or subcellular changes that serve as medical “warning signs” of a substantially increased risk of developing disease in the future. A plaintiff must be able to prove the existence of these changes, in order to satisfy the tort element of actual injury.
On June 23, 2013, U.S. District Court Judge Mark Wolf granted Raytheon summary judgment, ruling that the plaintiffs could not come forth with admissible evidence of the required subcellular changes (i.e., for each of them, two positive tests for beryllium sensitivity, a “warning sign” of possible future beryllium disease). The plaintiffs appealed to the First Circuit, arguing that the trial court misunderstood Donovan and the relevant medical science.
NELF, together with Associated Industries of Massachusetts, filed an amicus brief in support of Raytheon. In it NELF explained that the plaintiffs’ case depends on weakening and obfuscating, in a variety of ways, the standard set out in Donovan I. Their claim requires proof of a present, actual physical “impact,” which in this case would mean that they each have suffered subcellular changes connected to beryllium sensitivity, the very thing the plaintiffs cannot show. NELF then explained how, under the erroneous standard advanced by the plaintiffs, a mere risk of a risk of future disease would give rise to a Donovan claim. NELF rebutted in detail the use the plaintiffs make of Donovan I’s successor case, Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 16 (D. Mass. 2010) (“Donovan II”), showing, for example, that the Donovan requirements are not limited to tobacco class actions and that the plaintiffs hold numerous erroneous views of the facts of Donovan II. Finally, NELF explained that amendment of their complaint, in order to seek refuge for their claims under an issue of law left undecided in Donovan I, should not be allowed because it would be futile.
In its June 10, 2014 decision, the Court upheld summary judgment, chastising the plaintiffs for trying to alter their appeal to encompass the issue left undecided in Donovan I.