Genereux v. Raytheon Co.

• Decision Date: 10 June 2014
• Docket Number: No. 13–1921.,13–1921.
• Parties: Barry GENEREUX et al., Plaintiffs, Appellants, v. RAYTHEON COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

754 F.3d 51

Barry GENEREUX et al., Plaintiffs, Appellants,

v.RAYTHEON COMPANY, Defendant, Appellee.

No. 13–1921.

United States Court of Appeals,First Circuit.

June 10, 2014.

Ruben Honik, with whom Kevin W. Fay, Golomb & Honik, P.C., Michael B. Bogdanow, and Meehan, Boyle, Black & Fitzgerald, P.C. were on brief, for appellants.

Jonathan M. Albano, with whom Janice W. Howe, Bingham McCutchen LLP, James F. Kavanaugh, Jr., Ronald M. Jacobs, and Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP were on brief, for appellee.

John Pagliaro and Martin J. Newhouse on brief for New England Legal Foundation and Associated Industries of Massachusetts, amici curiae.

Before TORRUELLA and SELYA, Circuit Judges, and McAULIFFE,^* District Judge.

SELYA, Circuit Judge.

A familiar bit of homespun philosophy warns of the perils of attempting to change horses in midstream. This admonition applies in litigation as well as in life. Thus, 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. That is among the lessons of this appeal.

I. BACKGROUND

We rehearse the facts in the light most favorable to the plaintiffs, who opposed summary judgment below. See RTR Techs., Inc. v. Helming, 707 F.3d 84, 87 (1st Cir.2013). In the process, we reserve many important details for our later discussion of the issues.

Beryllium is a useful but hazardous substance, and even modest exposure can cause a malady known as Chronic Beryllium Disease (CBD). This malady, caused exclusively by beryllium exposure, is characterized by inflammation and scarring of lung tissue. It can seriously impair organ function. Although there is no known cure for CBD, early detection and treatment can ameliorate its ravages.

The pathogenesis of CBD begins with beryllium sensitization (BeS). Even though BeS is regarded as an abnormal medical finding, it can be asymptomatic and is typically not treated. Nevertheless, persons with BeS should receive periodic clinical screenings to detect disease onset.¹ Those persons who are diagnosed with BeS alone are at a high risk of developing CBD during their lifetimes.

Since early detection of BeS is one key to effective treatment of CBD, current medical practice calls for all persons exposed to beryllium above background levels to be screened for BeS every three to five years using a beryllium lymphocyte proliferation test (BeLPT). The BeLPT sometimes yields false positives, so BeS is defined by no fewer than two positive BeLPT results. Because BeS and CBD can develop after a long latency period, those persons registering negative BeLPT results should be re-tested throughout their lifetimes.

We move now from the general to the specific. The plaintiffs in this case are various members of the Bettuchy, Balint, and Genereux families. The Bettuchys and the Balints are the named plaintiffs in a putative class action filed in the United States District Court for the District of Massachusetts, invoking federal diversity jurisdiction under the special jurisdictional provisions of the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Their complaint alleged that the defendant, Raytheon Company, endangered the health of the plaintiffs and others similarly situated by negligently exposing them to beryllium used in the manufacturing process at its plant in Waltham, Massachusetts.²

The plaintiffs seek to represent two proposed classes. One comprises all persons who worked at the Waltham plant for at least one month prior to December 31, 1996. The other comprises all persons who lived with members of the first class and thus were subject to take-home beryllium exposure. Persons already diagnosed as having CBD (like Suzanne Genereux, see supra note 2) are excluded from both proposed classes.

The action seeks to compel Raytheon to establish a trust fund to finance appropriate medical monitoring for both classes of plaintiffs. As the plaintiffs envision it, such medical monitoring would include regular BeLPT testing.

Following extensive pretrial discovery and work devoted to a narrowing of the issues, the district court granted summary judgment in favor of Raytheon. See Genereux v. Hardric Labs., Inc., 950 F.Supp.2d 329, 341 (D.Mass.2013). This timely appeal ensued.

II. ANALYSIS

We review de novo a district court's entry of summary judgment. See Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir.2010). In assessing the propriety of such a disposition, we must take the record in the light most hospitable to the nonmovants (here, the plaintiffs) and draw all reasonable inferences in their favor. See Geshke v. Crocs, Inc., 740 F.3d 74, 76 (1st Cir.2014). “If—and only if—the record, viewed in this light, discloses the absence of any genuine issue of material fact and reveals the movant['s] entitlement to judgment as a matter of law, we will affirm the summary judgment order.” Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 66 (1st Cir.2008); seeFed.R.Civ.P. 56.

Because this suit was brought in diversity jurisdiction, see28 U.S.C. § 1332(d)(2), state law supplies the substantive rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Katz v. Pershing, LLC, 672 F.3d 64, 72 (1st Cir.2012). The parties (who agree on little else) proceed on the shared premise that Massachusetts law controls. Given the reasonableness of this premise, we readily accept it. See Katz, 672 F.3d at 72.

The cornerstone of an action for medical monitoring under Massachusetts law is the decision of the Massachusetts Supreme Judicial Court (SJC) in Donovan v. Philip Morris USA, Inc. (Donovan I), 455 Mass.215, 914 N.E.2d 891 (2009). There, a class of plaintiffs who shared a history of at least twenty pack-years of smoking ³ but who had not yet developed lung cancer, sought to compel the defendant cigarette manufacturer to provide a court-supervised medical surveillance program for early cancer detection. See id. at 895. Although the suit did not fit the traditional tort mold because none of the plaintiffs actually had contracted cancer, the SJC acknowledged that Massachusetts tort law “must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent.” Id. at 901. The court went on to rule that the cost of medical monitoring may be recoverable in a tort suit under Massachusetts law. See id.

The Donovan I 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. See id. at 898–99. 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. See id. at 901–02. Under the cause of action recognized in Donovan I, increased epidemiological risk of illness caused by exposure, unaccompanied by some subcellular or other physiological change, is not enough to permit recovery in tort.

Beyond this particular cause of action, the SJC ruminated about another possibility. It pondered whether, if a manufacturer exposes a person to a dangerous carcinogen, a cause of action for medical monitoring would lie even though no subcellular or other physiological change had yet occurred. Id. at 901. The court made no ruling on this hypothetical set of facts but, rather, left the question “for another day.” Id.

Against this backdrop, we turn to the plaintiffs' assignments of error.

A. The Plaintiffs' Principal Theory: Subcellular Change.

The plaintiffs begin with a claim that their case fits snugly within the confines of Donovan I. The district court disagreed. See Genereux, 950 F.Supp.2d at 340–41. The testimony of the plaintiffs' main expert, Dr. Lee S. Newman, sits at the fulcrum of the dispute.

Dr. Newman opined that BeS is the first manifestation of subcellular change resulting from beryllium exposure. He explained that, if the entire membership of both of the proposed plaintiff classes were to be tested, somewhere between one percent and twenty percent of those persons would be found to have BeS. Since beryllium exposure is the only known cause of BeS, this one percent to twenty percent likelihood puts the plaintiff classes at appreciably higher risk of contracting CBD than a randomly selected baseline population.

Dr. Newman could not confirm, however, that any named plaintiff had as yet contracted BeS.⁴ By the same token, he could not identify any particular member of either class known to have developed BeS.

The plaintiffs also point to their expert's testimony that all plaintiffs “are now at a significantly increased risk for the development of beryllium related health effects in relation to an unexposed population.” In maintaining that this testimony is sufficient to bring them within the compass of Donovan I, they try to draw a parallel to expert opinion provided at a later stage of the Donovan litigation. This effort fails.

In Donovan I, the SJC answered questions transmitted by a federal district court. See Mass. S.J.C. Rule 1:03. In its subsequent class certification ruling, the federal district court relied on expert testimony that “ everyone with a twenty pack-year smoking history has suffered subcellular harm [which] necessarily mean[s] increased risk of lung cancer.” Donovan v. Philip Morris USA, Inc. (Donovan II), 268 F.R.D. 1, 16 (D.Mass.2010) (emphasis in original). Here, however, the class members share no such universal harm. In sharp contrast to Donovan II, the expert testimony in this case shows only that every plaintiff faces a “significantly increased risk” of harm. Risk and harm are two materially different...