Court OKs Medical Monitoring Suit by Smokers

The Boston Globe reports that Massachusetts’ highest court has given the green light to a lawsuit by three smokers who are seeking to force Philip Morris to pay for medical monitoring to detect lung cancer.

According to the lawsuit, Philip Morris negligently manufactured cigarettes containing carcinogens that put the plaintiffs at increased risk for lung cancer. In a unanimous decision, the Supreme Judicial Court held that the plaintiffs need not show that they already have an injury to receive medical monitoring.

…medical monitoring expense is the plaintiffs’ only arguably provable damages. They could not have sued for pain and suffering or lost earning capacity. This is not a case where plaintiffs recovered damages for pain and suffering, lost earning capacity, but only some medical expenses based on existing medical technology. These plaintiffs, or so they allege, had absolutely no remedy until LDCT technology appeared. If they can establish these circumstances, which are unusual and perhaps unique to medical monitoring claims, then their claims are timely. This is a question that cannot be resolved on the record before us; it must be resolved on a motion for summary judgment or, if genuine issues of material fact remain, by a jury. The plaintiffs also must show that the standard of care of the reasonable physician did not call for monitoring of any precancerous condition prior to the statute of limitations period, not just that the technology at that time was less effective for monitoring.

Legal Battle Ends with Release of Michael O’Laughlin

The Boston Globe reports on the complex criminal trial of Michael O’Laughlin which went from the trial court to the Appellate Divison to the Supreme Judicial Court to the First Circuit Court of Appeals to the United States Supreme Court and back to the US District Court in Massachusetts:

O’Laughlin was convicted of bludgeoning Annmarie Kotowski, a Dalton elementary school teacher, two years earlier in her apartment in Lee. The attack, which authorities theorized had been carried out with a baseball bat, fractured her skull, and she could not recall who beat her.

The state Department of Correction, through Coakley’s office, then asked the US Supreme Court to stay the order while it sought a review of the case by the full court. But Justice Stephen G. Breyer rejected the request on Aug. 26 and said he doubted the full court will hear the case, based on the state’s likelihood of success.

O’Laughlin, who lived two doors down and was a maintenance worker in the complex, was sentenced to 35 to 50 years in prison.

The order was the first of its kind by the circuit and one of only a few such rulings by federal appeals courts in the country, according to O’Laughlin’s appellate lawyer, Kenneth I. Seiger of Brookline, an opinion echoed by other veteran criminal lawyers.

A state Appeals Court panel later reversed the conviction. But the state Supreme Judicial Court subsequently reinstated it, prompting O’Laughlin to file a challenge in the federal courts. The US Court of Appeals for the First Circuit ordered O’Laughlin freed and barred prosecutors from retrying him, saying the evidence was too flimsy and speculative for a jury to convict him.

Massachusetts SJC Limits Use of Police “Terry” Pat

In a slip opinion released yesterday, Judge Spina writing for the majority, agreed to suppress evidence obtained during an illegal “stop and frisk.”   The defendant, Paul Gomes, was known to the Boston Police as an “impact player” and was found in a high crime area at 4:00 a.m.  Based on observations between Mr. Gomes and another individual, the police believed that he was involved in a drug deal.  The police approached the two men, asked the defendant what he was doing, and immediately conducted a patdown for weapons.  During the patdown, crack cocaine fell out of the defendant’s pant leg and he was arrested.

The defense argued that the drugs should be suppressed because the terry pat was unlawful.  The trial court disagreed, but in a 5-1 opinion, the SJC reversed.  The SJC stated that the scope of a “stop and frisk” must be justified by the circumstances.  While the court concluded that there was reasonable cause to approach the two men, there was no justification to search for weapons prior to arrest.  Here, the defendant lacked any history of prior gun charges, the police offerred no testimony suggesting that they believed the defendant was armed, the defendant did not attempt to flee, and the police were not outnumbered.  Based on these facts, Justice Spina concluded that, “the degree of police intrusion was not proportionate to the articulable risk to officer safety, and, therefore, was constitutionally impermissible.”

The case is Commonwealth v. Gomes and the text of the opinion is located here.  For those of you interested in researching the history of the “Terry” pat, here is a link to the original US Supreme Court decision: Terry v. Ohio.