On May 14, 2009, the NAM joined seven other business groups urging the Massachusetts Supreme Court to reject a proposed right by smokers to sue a cigarette company to pay for medical monitoring without showing that they have a manifest physical injury.
The plaintiffs in this case are a class of people who smoked Marlboro cigarettes, but who do not have lung cancer and who are not under investigation by a physician for suspected lung cancer. Instead, they claim “sub-cellular injuries,” meaning that no physical injury is manifest. Traditional tort law requires that a plaintiff have some injury before he or she may file suit for damages, including the cost of medical treatment or monitoring. There should be no recovery based on the mere possibility of a future injury. If such a remedy is to be provided, the legislature should make that decision, considering all the daily situations that might lead some to seek medical monitoring and the ramifications for the economy.
Medical monitoring claims create the opportunity for abuse, burden the courts, and have been rejected by many other courts, including the Supreme Court. States that have recognized medical monitoring claims have seen their courts inundated with lawsuits (West Virginia), or have promptly enacted corrective legislation (Louisiana). In addition, lump-sum medical monitoring awards create the opportunity for abuse by members of a class who do not use the funds for the intended purpose, or would tie up the courts with a burdensome and expensive problem of administration.
On October 19, 2009, the Massachusetts Supreme Court ruled that there is no need to prove physical harm manifested by objective symptoms. It was enough that the plaintiffs provided evidence of "physiological changes" caused by smoking, and that those changes substantially increased their risk of cancer. The court left for another day whether exposure to a hazardous substance known to cause cancer might also give rise to a medical monitoring claim even though no symptoms or subclinical changes have occurred. The plaintiff will have to show that there is a substantial increase in risk of harm from the alleged exposure. The court also ruled that once a plaintiff actually develops cancer, a separate suit may be filed for those damages, without violating the "single controversy" rule.