Wrongful death depends on viability of decedent's action at time of death, Mass. high court rules

Via Picryl

When a statute of limitations precluded smokers' suits against tobacco makers, the smokers' families also could not sue in wrongful death after the smokers died, the Massachusetts Supreme Judicial Court ruled in July.

It's harder nowadays, than it once was late in the last century, for smokers to sue Big Tobacco for the health consequences of smoking. In accordance with the peculiar lifecycle of many product liability theories, tobacco makers have acquired strong defenses against smokers who persist despite now well known risks. There are occasional plaintiff wins, still. But over time, fewer cases can pass muster by proving recent manifestation of injury incurred long ago.

In one strategy to circumvent the natural expiration of product liability exposure, Massachusetts plaintiffs, whose family members succumbed to smoking-related illnesses, theorized that wrongful death in commonwealth statute is a cause of action independent of the decedent's causes for personal injury. In this theory, the wrongful death action comes into being only upon the death of the decedent and might resist defenses that would have defeated the decedents' own personal injury claims—namely, the statute of limitations.

In the consolidated Fabiano v. Philip Morris USA Inc. and Fuller v. R.J. Reynolds Tobacco Co., the plaintiffs alleged negligence and breach of warranty pursuant to the wrongful death statute, even while they did not dispute that the smoker-decedents, plaintiffs' family members, could not have sued in personal injury at the time of death because of the expiry of the limitations period for those actions. Accordingly, there also could be no survival claims in the names of the decedents.

The court rejected the plaintiffs' theory, affirming the judgment of the courts below in favor of the defendants. Even though it has its own statute of limitations, wrongful death was nonetheless intended by the legislature to be a derivative cause of action, the court opined. The cause vests in family only if the decedent has a viable cause at the time of death.

The court had said as much before as to personal injury actions, so affirmed that rule, and moreover held that plaintiffs in Fabiano and Fuller failed to distinguish breach of warranty claims. All of the family's liability theories are constrained by the wrongful death statute, and so by its limitations.

The court acknowledged that not every state agrees. Colorado and West Virginia seem to regard the wrongful death action as an independent statutory action. But they are out of step with the "overwhelming majority" rule in the states, the court observed.

In teaching torts, I prefer to describe wrongful death claims as "parasitic," rather than "derivative." The concepts are not co-extensive, but both terms capture the notion of dependency on the underlying personal injury claim. I admit, I had never considered the plaintiffs' theory and did not know about the Colorado and West Virginia approach.

There is a logic to the minority rule. A wrongful death claim means to compensate "parasitic plaintiffs" for their losses, not the losses of the decedent. The wrongful death plaintiff thus does not incur injury until the time of death. At the same time, the policy of the statute of limitations attached to the decedent's claim, which statute protects defendants against excessive liability exposure, is somewhat undermined by tacking on the enduring potential of a recovery upon death at an indefinite later time.

Justice David A. Lowy wrote the court's unanimous opinion in Fabiano and Fuller, No. SJC-13282 & No. SJC-13346 (Mass. July 6, 2023) (FindLaw).

Mass. court affirms big verdict against Big Tobacco

Autodesigner via Wikimedia Commons CC0 1.0

Last week, the Massachusetts Supreme Judicial Court affirmed a lung cancer victim's verdict against Marlboro maker Philip Morris (PM).

Arising from verdict in a $37m case against PM and co-defendants, including R.J. Reynolds Tobacco Co. and Star Markets, the decision broke no new ground, but might be instructive for students of product liability.

On appeal, PM did not "dispute that the plaintiffs introduced sufficient evidence of agreement between it and the other cigarette entities to deceive the public about the dangers of smoking.... Further, [PM did] not dispute the evidence of medical causation, i.e., that smoking causes the type of cancer from which Greene suffered."

Rather, PM asserted that the plaintiff failed to connect causally her choice to smoke to specific misrepresentations. The court wrote that PM viewed the evidence too narrowly, and that the plaintiff sufficiently "met this requirement by introducing evidence of her detrimental reliance on the conspiracy's misrepresentations regarding filtered cigarettes. [PM] represented that such products, including Marlboro Lights, delivered lower tar and nicotine and were a healthier alternative to regular cigarettes."

The plaintiff also met the burden of proving causation on a count of civil conspiracy. "The conspirators expressly misrepresented to the public that they would not have been in the business of selling cigarettes if cigarettes were truly dangerous," the court reasoned. Consequently, "the jury could have found that [the plaintiff] would have smoked less, or quit sooner, absent the conspiracy's campaign of fraud and deception."

PM also pointed to the court's 2021 adoption of the Third Restatement approach to causation (on this blog) to argue that the jury was erroneously instructed on "substantial causation." The court ducked the question by finding that counsel had not preserved their objection to the jury instructions.

Finally, the court upheld the award as against PM challenges to the trebling of damages under Massachusetts consumer protection law and the commonwealth's 12% judgment interest rate.

The case is Greene v. Philip Morris USA Inc., No. SJC-13330 (Mass. May 9, 2023). The unanimous opinion was authored by Justice Scott L. Kafker, who also wrote the opinion in the 2021 causation case.

Opioid settlement disbursements must be transparent, state high court rules in row over nonprofit foundation

The nonprofit foundation responsible for disbursing hundreds of millions of dollars of opioid settlement money in Ohio is subject to state freedom of information laws, the state supreme court ruled Thursday.

Big money is flowing out of opioid settlements, such as the $10 billion deal struck by pharmacies CVS and Walgreens. Ohio will see some $450 million of that money, Emily Field reported for Law360 (limited free access). At least half of it will be disbursed by a nonprofit organization that state and local governments created for the purpose, the OneOhio Recovery Foundation.

A representative of Harm Reduction Ohio (HRO), another nonprofit organization, concerned with preventing overdose deaths, was shown the door at a OneOhio meeting not open to the public. OneOhio subsequently refused to reply to record requests under the Ohio public records act (PRA).

That will change now, as the Ohio Supreme Court ruled unanimously that OneOhio is the functional equivalent of a public entity, the test for bringing quasi-private actors within the scope of the PRA. To determine functional equivalence, the court explained, a totality-of-the-circumstances, multi-factor test asks:

(1) whether the entity performs a governmental function,
(2) the level of government funding, 
(3) the extent of government involvement or regulation, and 
(4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.

The burden of proof is "clear and convincing," which is no low hurdle. 

The factors are common in functional equivalence tests in state sunshine laws in the United States. The devil is in the application. Characteristically, HRO and OneOhio posited very different analyses.

Though the multi-factor test makes no one factor dispositive, funding often proves controlling in cases such as these, even to the point that some states employ a disjunctive formulation along the lines of "state funding or state power." Here, the parties looked at the problem from differing angles. HRO characterized the money under the control of OneOhio, an entity created by government, as public money. OneOhio rather looked to the source of the money, private corporations, and to the ultimate beneficiaries, private-person recipients of state aid.

HRO had it right, the court decided. The analysis was bolstered by the inescapable conclusion that OneOhio was created by state and local governments through a memorandum of understanding specifically about how they would handle the money. OneOhio tried to resist the fourth factor by articulating it as conjunctive, thus, requiring an intent to evade the PRA. But the court had none of it.

Another somewhat superfluous argument by OneOhio merits mention. The foundation argued that subjecting it to the PRA would makes its funds vulnerable to raiding for other purposes by the legislature. Neither here nor there, the court opined. I suggest moreover that OneOhio's PRA accessibility is the result not the cause of its public status.

What's interesting about the argument from a tort perspective, though, is that OneOhio pointed to the example of tobacco settlement money. The Ohio executive and legislature responded to the 2008 financial crisis by diverting $230m in proceeds from the 1998 Master Settlement Agreement with Big Tobacco to unrelated purposes, namely, balancing the budget and fostering job creation. The Ohio Supreme Court upheld the diversion against constitutional challenges in 2010.

The application in the states of functional equivalence and similar tests to extend sunshine laws to quasi-private actors is highly variable, as much a function of the eye, or prejudices, of the beholder, as of any mathematical formula. That makes it difficult to extrapolate from the Ohio case beyond Ohio.

Still, I find this case offering a compelling analysis to access the infamously secret records of university foundations in other states. Those records, too, often are secreted upon the rationale that the funds originate with private donors. Consistently with the instant case, but not representing a majority rule in the states, the Ohio Supreme Court sided with a newspaper in 1992 in granting PRA access to the donor rolls of the nonprofit University of Toledo Foundation.

The instant case is State ex rel. Harm Reduction Ohio v. OneOhio Recovery Foundation, No. 2023-Ohio-1547 (May 11, 2023).

Flawed instruction on 'reasonable alternative design' requires vacatur of tobacco defense judgment

Plaintiff's decedent started smoking in the early 1960s,
at age 13 or 14, with free samples of Kents.
(David Shay CC BY-SA 2.5 via Wikimedia Commons)

An error in jury instruction was small but crucial in a Massachusetts tobacco liability case, resulting in partial vacatur in the Appeals Court.

The plaintiff, decedent's representative, alleged design defect as cause of terminal lung cancer. The jury was instructed that the plaintiff had to prove the availability of a reasonable alternative design by the time the plaintiff was addicted.

That instruction described too tight a time frame, the court held. "[T]he jury should have been told to assess whether a reasonable alternative design existed at the time of distribution or sale."

The court explained:

If a manufacturer continues to make and sell a harmful and addictive product even though a safer alternative is available, the fact that the consumer is addicted to the product makes it more—not less—important for the manufacturer to adopt the available safer alternative. The purpose of anchoring liability to the point in time when the defective product is sold or distributed is to give manufacturers an incentive to create safer products [citing, inter alia, the Third Restatement of Torts].... Were we to adopt the defendants' view that liability should attach only up until the point in time a smoker becomes addicted to cigarettes, that incentive would be severely diminished, or even eliminated. Such a rule would in essence immunize cigarette manufacturers from liability to addicted persons even though they continue to sell or distribute defective products despite the availability of reasonable alternative designs. We see no reason to limit liability in this way, especially given the addictive nature of cigarettes, the speed with which smokers can become addicted to them, and the years—if not decades—thereafter during which a person continues to smoke and thus remains exposed to the dangers of cigarettes. In this regard, we note further that, as the expert testimony bore out, ... the degree or point of addiction to tobacco may be viewed as a continuum rather than a bright line. For this reason, it is all the more important that manufacturers be encouraged to produce safer, less addictive products at all points in time so as to increase the possibility that an addicted smoker be able to quit.

The court vacated the judgment in favor of defendants insofar as it arose from the erroneous instruction.

The case is Main v. R.J. Reynolds Tobacco Co., No. 20-P-459 (Mass. App. Ct. Apr. 8, 2022). Justice Gabrielle R. Wolohojian wrote the opinion for a unanimous panel.

Court affirms widow's $21m verdict vs. Big Tobacco, upholds punitive damages despite '98 settlement

Marlboro Red Open Box by Sarah Johnson (CC BY 2.0)

The Massachusetts Supreme Judicial Court today affirmed a $21m verdict against Philip Morris USA in favor of the widow of a smoker who died of lung cancer in 2016.

Fred R. Laramie started smoking in 1970, at age 13, when a store clerk gave him a free sample pack of Marlboros, the Supreme Judicial Court (SJC) recounted.  He became a pack-a-day smoker and remained loyal to the brand, unable to quit despite trying, until his diagnosis and death in 2016.

Laramie's wife, Pamela, sued under the Massachusetts wrongful death statute.  She alleged that Marlboros were dangerously defective for their engineered addictive properties, an excess of the risk of smoking known to consumers and indicated on cigarette labels since 1969.  The jury in the Superior Court awarded Pamela Laramie $11m in compensatory damages and $10m in punitive damages.

The bulk of the high court's 37-page, unanimous opinion analyzes the inventive defense argument that the large punitive award is precluded by the 1998 Master Settlement Agreement (MSA) of state claims against Big Tobacco.  As the court recalled in a footnote:

The [Big Tobacco] defendants agreed to pay approximately $240 billion to the settling States over twenty-five years, and to pay approximately $9 billion per year thereafter in perpetuity, subject to various adjustments. The agreement allocated approximately four percent of those payments to the Commonwealth. The defendants also agreed to restrict cigarette advertising and lobbying efforts, to permit public access to certain internal documents, and to fund youth education programs.

Punitive damages are not awarded in Massachusetts common law; they must be authorized by statute.  The wrongful death statute authorizes punitive damages when the defendant caused injury "by ... malicious, willful, wanton or reckless conduct ... or by ... gross negligence."

The plaintiff successfully relied on internal documents of Big Tobacco that demonstrate the artificial manipulation of the nicotine content in cigarettes.  In the 1990s, the revelation of such records marked the plaintiff breakthrough that precipitated the collapse of Big Tobacco's long-successful wall of defenses in product liability litigation.  The revelation represented, more or less, the information at issue in the case of whistleblower-scientist Jeffrey Wigand, reported in 1996 by Vanity Fair and 60 Minutes and subject of the 1999 feature film, The Insider.

The SJC rejected the defense argument of claim preclusion.  The court recognized a qualitative difference between the claims of the Attorney General that resulted in the MSA and the claim of Laramie that persuaded a jury.

The "wrong" the plaintiff sought to remedy was the loss she and her daughter sustained due to Laramie's death, caused by Philip Morris's malicious, willful, wanton, reckless, or grossly negligent conduct, see [wrongful death statute,] G. L. c. 229, § 2. The "wrong" the Attorney General sought to remedy, by contrast, was the Commonwealth's increased medical expenditures caused by Philip Morris's commission of unfair or deceptive acts or practices in violation of [consumer protection law,] G. L. c. 93A, § 2.

Product liability, like punitive damages, is not a function of common law in Massachusetts, at least formally.  The commonwealth imposes strict product liability through a wide-ranging consumer protection statute, "chapter 93A."  Product liability is effectuated formally as a warranty obligation by eliminating the requirement of contractual privity between plaintiff and defendant.  But from that point, functionally, the courts breathe life into the system with multistate common law norms.

Probably Philip Morris's best argument for claim preclusion arose in the theory that chapter 93A affords treble damages, which were incorporated, in theory, into the MSA, and therefore overlaps with chapter 229 in wrongful death.  But the court distinguished the two statutes.  While both afford punitive recovery, the tests and purposes differ.  Damages under 93A were predicated on commercial practices that caused injury to state interests, while 229 damages, which are not capped, arise from culpability in inflicting personal injury on a decedent in a wrongful death action, here, Fred Laramie.

The court rejected a range of other asserted errors, whether because not error or harmless error, in relation to evidentiary admissions, jury instructions, and closing arguments.  Philip Morris had prevailed in the trial court on plaintiff claims of negligence and civil conspiracy.

With regard to jury instructions, the SJC distinguished product liability in warning defect, which was not plaintiff's theory of liability, from the design defect the plaintiff did claim.  The jury was properly instructed, the court held, that 

congressionally mandated warnings were adequate as a matter of law to warn Mr. Laramie and other members of the public of the hazards associated with smoking. The law, however, does not permit a cigarette manufacturer through its statements or actions to mislead consumers or make misrepresentations about the risks or hazards associated with smoking.

Philip Morris complained that the jury was thereby misled to test for liability in misrepresentation or warning defect.  The excerpted bit strikes me, too, as problematic.  Nevertheless, the SJC wrote that the jury was correctly instructed on the elements, so the instructions were "clear" when "viewed as a whole."

Interesting for torts pedagogy in product liability is the court's recitation of defense theories that were rejected at trial.

In its defense, Philip Morris introduced evidence that there was no adequate, safer alternative design for Marlboro cigarettes. An expert for Philip Morris testified that all cigarettes are dangerous, and that any proposed alternative design was not safer, not acceptable to consumers, or not technologically feasible. Philip Morris maintained that Marlboro cigarettes were not unreasonably dangerous to Laramie because Laramie understood the risks of smoking.

Reports linking smoking to cancer had been published in the 1950s and 1960s, and people had recognized that tobacco was addictive "going back almost [one hundred] years."  Moreover, there was testimony that every pack of Marlboro cigarettes sold between 1970 and 1984 contained a warning label from the Surgeon General that "cigarette smoking is dangerous to your health," and that every pack sold thereafter contained one of four warning labels that are still in use. Cigarette advertisements also were banned from television and radio beginning in January 1971, when Laramie was thirteen or fourteen years old. In addition, since January 1972, every print advertisement for cigarettes has been required to include a warning label similar to those on cigarette packs.

In sum, based on this evidence, Philip Morris argued that Laramie caused his own death because, despite being adequately informed of the health risks of smoking, Laramie chose to smoke, and then chose not to quit smoking.

(Paragraph breaks added.)  The plaintiff overcame the no-alternative-design defense by hypothesizing that Fred Laramie might not have become addicted to a low-nicotine cigarette.  Defense theories in assumption of risk, personal choice, and sufficiency of warning all fell short against the showing of nicotine manipulation.

The case is Laramie v. Philip Morris USA, Inc., No. SJC-13070 (Mass. Sept. 15, 2021) (oral argument at Suffolk Law).  Justice Dalila Argaez Wendlandt authored the opinion for the unanimous panel of six justices.  Disclosure: As an attorney in private practice, I worked on the Philip Morris defense team on tobacco litigation in the 1990s.

Book Review: The Experimental Society by Marshall S. Shapo

Catching up on reading since the close of the spring semester, I just finished Professor Marshall Shapo’s The Experimental Society (Transaction Publishers (now Routledge) 2016) (385 pp.) (publisher, Amazon, SSRN abstract, author interview) (385 pp.).  I highly recommend the book, which is fit for general audiences, besides lawyers and law students.

The experiment of the book’s title refers loosely to the American mix of free market and tort litigation, which works out the rules for what is allowed and not allowed in our society.  The dynamic is most plain in product liability.  A manufacturer brings to market a new and useful product, such as asbestos.  Later it’s learned that the product poses a grave risk to human health.  In extracting accountability for physical injury, the tort system regulates the continued use of asbestos.

What this system ill accounts for is its human toll.  The tort system is a balancing act.  Extreme regulation (vetting?) of everything new—a drug, a car, or a method of cleaning floors—would make research and development prohibitively expense and smother innovation.  Injury and death would result from drugs never developed, or safety innovations never deployed.  At the other extreme, diminished accountability would sanction the prioritization of profit over life.

Civil conflict resolution—our litigation system—threads, marks, and forever revises the boundary between right and wrong.  But our dependence on that system presupposes optimal, if not ideal, efficiency.  In reality, our tort system is rife with inefficiencies.

The starkest of those inefficiencies might be time.  I just takes too long to reach a conclusion in U.S. litigation—months, years, and sometimes decades.  While the wheels of justice grind, injured persons are not made whole, and new victims are claimed.  Another inefficiency is “transaction costs,” that is, the cost of dispute resolution, which is compounded by time.  Our drive for just and precise outcomes means that lawyers, experts, and litigation soak up a disproportionate amount of resources—if a matter can be litigated at all—re-victimizing the injured plaintiff and penalizing a defendant that might or might not have done anything wrong.

But inefficiencies get worse still, as the tort system tends to perpetuate socio-economic inequalities and irrational discriminations.  A poor community, less able to accomplish political organization or campaign contribution, cannot finance tort litigation to combat the impact of industrial pollution as effectively as a wealthy community can.  Even after wrongdoing is established in tort litigation, awards turns on loss, meaning that the working poor and the unemployed have less to recover than the injured doctor or lawyer.  These socio-economic effects exaggerate systemic prejudices of race and gender.  Moreover, bias can be perpetuated in fact-finding through judge and jury in a case.  And bias finds its way even into law itself, such as in liability standards that favor the alienation of real property—and therefore those who can afford it.

The Experimental Society examines the real social impact of our litigation system as hall monitor.  Shapo engages briefly with the familiar territory of product liability for asbestos and cigarettes.  But with that historical foothold, the book ranges widely to examine contemporary risks, such as bisphenol A (BPA) and vaping.  Shapo moreover expands his inquiry well beyond straightforward product liability.  He engages at length with environmental contamination, examining fracking, oil spills, and nuclear accidents.  He considers threats to the food supply, such as mad cow disease with its mysterious pathology.  Shapo also thinks expansively about experiment, embracing in his analysis both the deliberate experimentation of human clinical trials and the inadvertent yet ultimate experiment of climate change.

This encyclopedia of troubling experiments under way in our world delineates one axis of Shapo’s inquiry.  Meanwhile he draws a second axis, which traces the anatomy of risk and rules.  About the first half of the book explicates case studies to the end of broadly defining risk and experimentation.  The latter half of the book dives deep into dispute resolution, considering how this broad range of experimentation in our society has generated various standards, rules, and remediation systems in workplace safety, consumer protection, and mass tort litigation.  Shapo’s end-game, reached in the final chapters, considers the interplay of our experimental society with cultural and moral factors—for example, our values with respect to personal responsibility, risk-utility economics, and technological determinism.

As the back cover of The Experimental Society reminds us, Marshall Shapo—the Frederic P. Vose Professor at Northwestern University Law School, and, disclosure: my lead co-author on the casebook Tort and Injury Law, and a treasured mentor—has been writing about injury law for half a century.

Yet however much the product of an elder statesman in tort law, The Experimental Society is boldly contemporary.  The book is a one-stop shop for anyone who wants to tour the leading edge of risk, health, and law.  The relevant science and technology, business and economics, and law and policy all are laid out in plain language to engage any reader interested in the human condition.

The Experimental Society disappointed me in one respect only: it offers no answer.  The reader should be warned that the book ends with only the urgent question it raises, where the balance should be struck in our tolerance of risk.  This is not The Secret, with the promise to invigorate your fortunes; nor Hidden Figures with its revelatory moral tale; nor the latest blueprint to fix our democracy.  The Experimental Society isn’t selling answers.

Though I was disappointed not to find at the book’s end that Shapo’s wealth of experience could map out The Better Way, that expectation was foolhardy on my part.  However skilled a researcher and writer, Shapo is after all a teacher.  He recounts in the book a Socratic game he played with his eight-year-old granddaughter to demonstrate for her, of all things, Ken Feinberg’s predicament in compensating economic loss after the BP oil spill.  In good American fashion, the girl favored compensation precisely and fully for everyone who suffered injury.  Shapo didn’t tell her that that, ultimately, would be impossible; he showed her.

And that’s what The Experimental Society does: it shows us a problem that is inherent in the human social condition.  It turns the problem over, so we can see it from every angle.  Risk, it turns out, is not antagonistic to life; risk is an indispensable condition of life.  Risk yields reward, and reward makes life worth living.  How do we manage that risk to maximize reward, and what costs are we willing to tolerate in its pursuit?  Shapo knows that that’s an ancient problem—older than Deuteronomy 19:5.  So in The Experimental Society, he does the best a teacher can: to restate an eternal question for a new age.

Big Tobacco wins in Mass. trial for medical monitoring

Big Tobacco's Philip Morris prevailed in a product liability jury trial in Massachusetts in late September.  Hat tip: Torts Today.

The litigation started in 2006 with Massachusetts Marlboro smokers not alleging physical illness as such, but seeking medical monitoring in the form of "Low Dose CT Scanning of the chest" to early detect lung cancer.  State law in the United States has been increasingly receptive to medical monitoring as a form of award in mass tort cases, though a division has emerged in the jurisdictions between acceptance and rejection of the theory.  An award of medical monitoring essentially recognizes a civil wrong upon a modicum of extant physical injury, so raises concerns about the appropriate scope of tort liability.  If the tort system becomes too far detached from substantial, quantifiable loss, we worry about susceptibility to fraud, incentives to over-litigiousness, reliability of the courts to resolve disputes, and ultimately whether tort law will so pervade our lives that we fear liability for causing hurt feelings.

In the decade of litigation in this PM case, the federal court certified questions to the Massachusetts Supreme Judicial Court to ascertain whether Massachusetts law recognizes a medical monitoring claim, and if so, when the statute of limitations period begins to run.  The SJC found its way to answer the first question in the affirmative in 2009 (455 Mass. 215).  The Court at that time wrestled with the physicality question, opining that indeed, "[n]egligence in the abstract does not support a cause of action" (quoting precedent).  But the Court found enough of a physical-injury hook on which to hang its hat.

"Our tort law developed in the late Nineteenth and early Twentieth centuries," the SJC wrote in 2009, "when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We 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."

So there is physical injury, the Court explained further:

Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring.  Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff's reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes. 

The Court set out the plaintiff's burden--in equity, rather than in tort--to prove:

(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint [grammatical non-parallelism in original!]. 

Expert testimony is "usually" essential.

On the second certified question, the Court found that the statute of limitations could afford some play room.  The Court ruled that plaintiffs' claims could come within the limitations period if the remedy sought, monitoring by low-dose CT scan, represented a new technological remedy where no remedy was previously available.  Moreover, this equity action would not preclude a later tort action, should cancer manifest and be detected.  The discovery rule would not run the limitations period on the cancer action until detection.

But all for naught in the end, in this case at least.  Back in federal court in September 2016, the jury rejected the plaintiff's claim of design defect in Marlboro cigarettes under the "RAD" test.  A design defect is a kind of product defect that may be said to occur when a product is properly made, because the failure is in the design itself.  RAD is a way of testing for design defect by asking whether the manufacturer could have availed of a "reasonable alternative design" that would not have contained the same injury-causing defect as the design that was employed.  Specifically, applying Massachusetts law, the federal court required the plaintiffs "to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer)."  Plaintiffs could not meet that burden.

The case also involved a "93A" claim, referring to Mass. Gen. Laws ch 93A, an important statutory claim in Massachusetts tort law that can sometimes give a plaintiff an alternative route to a win and can generate a multiplier on damages.  Formally 93A is a consumer protection statute, but unusually broadly drawn, it appears routinely as a companion to conventional tort claims.  However, there was no alternative route in this case, and the 93A claim failed upon the collapse of the design-defect theory.

The case is Donovan v. Philip Morris, No. 1:06-cv-12234-DJC (D. Mass. Sept. 22, 2016).  Here is the court Order:

Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with D. 540, 569 and 733, the Court reserved judgment on Plaintiffs' c. 93A claim against Defendant Philip Morris. This claim, as both parties acknowledge, is premised upon the breach of implied warranty of merchantability (i.e., the design defect claim). D. 29 at ¶¶ 100-110; D. 736 at 2; D. 725-1 at 3 (noting that a breach of warranty claim generally constitutes a violation of c. 93A and cases cited). It was the design defect claim for which a jury, after a contested and well-tried case by both sides, found Philip Morris, not liable. D. 718 (verdict form). Having considered the evidence presented at trial and the parties' proposed findings of fact and conclusions of law, 725, 736, 740 (Plaintiffs' reply), the Court renders judgment for Philip Morris on the c. 93A claim and makes the following findings and conclusions.

The jury found for Philip Morris on the design defect claim, finding in the first instance that Plaintiffs failed to show that Marlboro cigarettes produced by the Defendant are defective and unreasonably dangerous. D. 718 at 1. The court finds that the Plaintiffs failed to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer) and that the Defendant's failure to adopt a safer, feasible alternative design was unreasonable. The Court adopts the Defendant's proposed findings of fact, D. 736 at ¶¶ 14-82 in this regard.

Having found and concluded that Plaintiffs failed to prove this first, requisite element of the breach of implied warranty of merchantability claim, the Court need not address the remaining elements of that claim. D. 715 at 159-60 (jury charge addressing elements of design defect claim). Since this claim was the basis of the alleged unfair and deceptive act under c. 93A, the Court concludes, by a preponderance of the evidence and based upon the same findings of fact, that Plaintiffs c. 93A claim fails as well.

Accordingly, the Court shall enter judgment for Defendant Philip Morris as to the c. 93A claim (Count III). (Hourihan, Lisa) (Entered: 09/22/2016)

Full disclosure: I served on the Philip Morris litigation team many, many years ago.