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Genereux v. Raytheon Co.

United States Court of Appeals, First Circuit

June 10, 2014

BARRY GENEREUX ET AL., Plaintiffs, Appellants,
RAYTHEON COMPANY, Defendant, Appellee

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Ruben Honik, with whom Kevin W. Fay, Golomb & Honik, P.C., Michael B. Bogdanow, and Meehan, Boyle, Black & Fitzgerald, P.C. were on brief, for appellants.

Jonathan M. Albano, with whom Janice W. Howe, Bingham McCutchen LLP, James F. Kavanaugh, Jr., Ronald M. Jacobs, and Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP were on brief, for appellee.

John Pagliaro and Martin J. Newhouse on brief for New England Legal Foundation and Associated Industries of Massachusetts, amici curiae.

Before Torruella and Selya, Circuit Judges, and McAuliffe,[*] District Judge.


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SELYA, Circuit Judge.

A familiar bit of homespun philosophy warns of the perils of attempting to change horses in midstream. This admonition applies in litigation as well as in life. Thus, when a litigant commits to a theory of the case and sticks to that theory past the point of no return, he cannot thereafter switch to a different theory simply because it seems more attractive at the time. That is among the lessons of this appeal.


We rehearse the facts in the light most favorable to the plaintiffs, who opposed summary judgment below. See RTR Techs., Inc. v. Helming, 707 F.3d 84, 87 (1st Cir. 2013). In the process, we reserve many important details for our later discussion of the issues.

Beryllium is a useful but hazardous substance, and even modest exposure can cause a malady known as Chronic Beryllium Disease (CBD). This malady, caused exclusively by beryllium exposure, is characterized by inflammation and scarring of lung tissue. It can seriously impair organ function. Although there is no known cure for CBD, early detection and treatment can ameliorate its ravages.

The pathogenesis of CBD begins with beryllium sensitization (BeS). Even though BeS is regarded as an abnormal medical finding, it can be asymptomatic and is typically not treated. Nevertheless, persons with BeS should receive periodic clinical screenings to detect disease onset.[1] Those persons who are diagnosed with BeS alone are at a high risk of developing CBD during their lifetimes.

Since early detection of BeS is one key to effective treatment of CBD, current medical practice calls for all persons exposed to beryllium above background levels to be screened for BeS every three to five years using a beryllium lymphocyte proliferation test (BeLPT). The BeLPT sometimes yields false positives, so BeS is defined by no fewer than two positive BeLPT results. Because BeS and CBD can develop after a long latency period, those persons registering negative BeLPT results should be re-tested throughout their lifetimes.

We move now from the general to the specific. The plaintiffs in this case are various members of the Bettuchy, Balint, and Genereux families. The Bettuchys

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and the Balints are the named plaintiffs in a putative class action filed in the United States District Court for the District of Massachusetts, invoking federal diversity jurisdiction under the special jurisdictional provisions of the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Their complaint alleged that the defendant, Raytheon Company, endangered the health of the plaintiffs and others similarly situated by negligently exposing them to beryllium used in the manufacturing process at its plant in Waltham, Massachusetts.[2]

The plaintiffs seek to represent two proposed classes. One comprises all persons who worked at the Waltham plant for at least one month prior to December 31, 1996. The other comprises all persons who lived with members of the first class and thus were subject to take-home beryllium exposure. Persons already diagnosed as having CBD (like Suzanne Genereux, see supra note 2) are excluded from both proposed classes.

The action seeks to compel Raytheon to establish a trust fund to finance appropriate medical monitoring for both classes of plaintiffs. As the plaintiffs envision it, such medical monitoring would include regular BeLPT testing.

Following extensive pretrial discovery and work devoted to a narrowing of the issues, the district court granted summary judgment in favor of Raytheon. See Genereux v. Hardric Labs., Inc., 950 F.Supp.2d 329, 341 (D. Mass. 2013). This timely appeal ensued.


We review de novo a district court's entry of summary judgment. See Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). In assessing the propriety of such a disposition, we must take the record in the light most hospitable to the nonmovants (here, the plaintiffs) and draw all reasonable inferences in their favor. See Geshke v. Crocs, Inc., 740 F.3d 74, 76 (1st Cir. 2014). " If -- and only if -- the record, viewed in this light, discloses the absence of any genuine issue of material fact and reveals the movant['s] entitlement to judgment as a matter of law, we will affirm the summary judgment order." Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 66 (1st Cir. 2008); see Fed.R.Civ.P. 56.

Because this suit was brought in diversity jurisdiction, see 28 U.S.C. § 1332(d)(2), state law supplies the substantive rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Katz v. Pershing, LLC, 672 F.3d 64, 72 (1st Cir. 2012). The parties (who agree on little else) proceed on the shared premise that Massachusetts law controls. Given the reasonableness of this premise, we readily accept it. See Katz, 672 F.3d at 72.

The cornerstone of an action for medical monitoring under Massachusetts law is the decision of the Massachusetts Supreme Judicial Court (SJC) in Donovan v. Philip Morris USA, Inc. (Donovan I), 455 Mass. 215, 914 N.E.2d 891 (Mass. 2009). There, a class of plaintiffs ...

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