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Two Cases Challenge Philip Morris on Early-Stage Lung Cancer


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Two Key Cases Challenge Philip Morris on Early-Stage Lung Cancer Detection

Sheri Qualters

The National Law Journal

January 8, 2009

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A Massachusetts federal judge sent legal questions raised by a lawsuit, which demands that cigarette maker Philip Morris USA Inc. provide early-stage lung cancer detection, to the Supreme Judicial Court of Massachusetts, while a similar New York federal case awaits a decision on class certification.

The purported class action in the U.S. District Court for the District of Massachusetts has two named plaintiffs, but is filed on behalf of Massachusetts residents at least 50 years old who smoked Marlboro cigarettes for at least 20 so-called pack years, which the complaint defines as the number of packs per day multiplied by the number of years the plaintiff smoked. Donovan v. Philip Morris USA Inc., No. 1:06-cv-12234 (D. Mass.).

The complaint further defines the class as current smokers, or those who have quit within the past year, who do not have lung cancer. The lawsuit asks Philip Morris to provide low-dose computed tomography (CT) scanning, which detects lung cancer when it is at an early, curable stage.

The claims include breach of implied warranty, defective design and negligent design and testing based on the allegation that the company knew that cigarettes were not safe for human use. Other claims include violation of the Massachusetts Consumer Protection Act and unfair methods of competition and unfair or deceptive acts and practices under Massachusetts state law.

In an order dated Dec. 31, 2008, and released on Jan. 5, U.S. District Judge Nancy Gertner certified two questions about the case to the state's Supreme Judicial Court. Gertner asked the state's highest court to answer whether the plaintiffs' medical monitoring lawsuit states a claim under state law "based on the subcelluar effects of exposure to cigarette smoke and consequent increased risk of lung cancer." Gertner also asked the court to answer whether the statue of limitations has expired on such claims.

Gertner ordered the parties to submit a joint proposed statement of facts by Jan. 12.

Steven Phillips, a partner at the lead firm on the case, New York's Levy, Phillips & Konigsberg, said he's confident the Massachusetts Supreme Judicial Court will rule in favor of allowing the medical monitoring claims. "We both hope and expect that they see things our way," Phillips said.

A similar case is awaiting a decision on class certification in the Eastern District of New York. Claims in that case include strict liability for defective design, negligent design and testing and breach of implied warranty. Caronia v. Philip Morris USA Inc., No. 1:06-cv-00224 (E.D.N.Y.).

Nobody is opposed to medical monitoring as a public health tool, but the question is whether this is a viable legal theory that can be pursued in a lawsuit, said Jack Marshall, a spokesman for Philip Morris' parent company Altria Group Inc.

"Although the plaintiffs' counsel has come up with a creative and innovative theory in this instance, most states don't recognize medical monitoring as a remedy or a cause of action," said Marshall. "We expect the cases to be dismissed."

"None of the plaintiffs are going to put a penny in their own pockets"; they're just looking for a life-saving medical test, Phillips said. "If successful, the cases have national implications because people smoke Marlboros in the other 48 states, too, and have the same dangers and the same needs," Phillips said.

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