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Article Excerpt
Article by Stephen J. Kane , Daniel L. Ring and Michael A. Olsen
Originally published November 4, 2009
Keywords: Massachusetts Supreme Court, medical monitoring, Donovan, Philip Morris, smoking, consumer fraud statute, toxic substances
In a recent opinion that bucks the national trend, the Massachusetts Supreme Judicial Court authorized plaintiffs who have no manifest physical injuries, but who assert "subcellular changes" caused by cigarette smoking, to sue for medical monitoring. Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009).
Plaintiffs in Donovan filed a putative class action in federal court on behalf of certain Massachusetts residents who smoke Marlboro cigarettes but "are not diagnosed with lung cancer or under investigation by a physician for suspected lung cancer." Although plaintiffs asserted in the briefing that smoking caused "injury to the tissues and structures of their lungs," they did...
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