Creeping Liability In The Courts Threatens Manufacturers

December 1, 2009 – FLAG Communications Weekly

One of the biggest threats to manufacturers in American courts is the constant pressure from the trial bar to test the limits of established law. One trial judge or two appellate judges who accept a novel theory in one case are all that is needed to release a barrage of claims against manufacturers in many industries. The decision below from Massachusetts is an example of how creeping liability begins. While it is a cigarette case, any product that might conceivably cause “sub-cellular injuries” can now be threatened with new medical monitoring claims.

On October 19, the Massachusetts Supreme Court opened the door for a new “right” to sue manufacturers. The decision clears the way for smokers to sue a cigarette company over payment for medical monitoring without showing that they have an obvious physical injury. The plaintiffs in the case claimed “sub-cellular injuries,” meaning that no physical injury is manifest. The NAM and seven other business groups had urged the court to reject plaintiffs' claims and support existing traditional tort law, which requires that a plaintiff have some injury before he or she may file suit for damages, including the cost of medical treatment or monitoring. Medical monitoring claims create the opportunity for abuse, burden the courts and have been rejected by many other courts, including the U.S. Supreme Court. Donovan v. Philip Morris USA, Inc. (Mass.).