## Facts

- Two long-term Marlboro smokers brought a putative class action on behalf of certain Massachusetts residents with extensive Marlboro smoking histories.
- Plaintiffs alleged they did not have diagnosed lung cancer but had subclinical lung changes and a materially increased risk of developing lung cancer.
- Plaintiffs claimed Philip Morris wrongfully designed, tested, marketed, and sold Marlboro cigarettes.
- Causes of action included negligence, breach of implied warranty (design defect), and violations of Massachusetts consumer protection law (Mass. Gen. Laws ch. 93A, §§ 2, 9).
- Plaintiffs sought a court-supervised medical surveillance program funded by Philip Morris, featuring low-dose computed tomography (LDCT) screening, rather than traditional compensatory damages.
- The case was filed in federal district court; that court certified questions to the Supreme Judicial Court of Massachusetts regarding whether Massachusetts law permits medical-monitoring recovery without manifested disease and, if so, whether the claims were time-barred.

## Issues

1. Whether Massachusetts law recognizes a cognizable tort claim and/or remedy for medical monitoring based on subclinical effects from cigarette smoke exposure and increased lung-cancer risk, where plaintiffs are otherwise asymptomatic.
2. If such claims are cognizable, whether the applicable statute of limitations had expired.

## Decision

- The court answered the first certified question “Yes,” to the extent plaintiffs alleged a tort action seeking future medical expenses in the form of reasonably necessary medical monitoring.
- The court treated medical monitoring as a compensable category of future medical expenses within traditional tort claims, not as a separate standalone tort.
- The court required stringent proof, including objective physiological change, significantly increased risk of serious disease, and a medically necessary and effective monitoring regimen supported by reliable expert evidence.
- The court answered the second certified question “No,” concluding on the allegations presented that the statute of limitations had not expired.
- The matter returned to federal court for further proceedings consistent with these answers.

## Legal Principles

- A plaintiff may recover reasonably necessary medical-monitoring costs as future medical expenses within a tort action when the plaintiff can prove exposure attributable to defendant misconduct and a present, medically demonstrated need for surveillance.
- “Injury” in this setting is not risk alone; it is the present need for medical monitoring, grounded in objective subclinical or physiological change and a significantly increased risk of serious disease.
- Recovery requires competent expert proof that the monitoring is reasonably necessary and effective for early detection in light of the plaintiff’s increased risk, not merely desirable or precautionary.
- Massachusetts’ discovery rule starts the limitations period when the plaintiff knew or reasonably should have known of the injury and its causal connection; for medical-monitoring claims, that focuses on awareness of the materially increased risk coupled with medically indicated monitoring, not generalized knowledge that smoking is dangerous.

## Conclusion

Massachusetts allows asymptomatic plaintiffs to seek medical-monitoring costs as future medical expenses in tort when they can prove objective subclinical injury, a significantly increased disease risk attributable to the defendant, and a medically necessary and effective monitoring program; on the allegations presented, such claims were not time-barred.


Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (Mass. 2009)