Change in MA law may require Philip Morris to pay for smokers’ cancer screening

Posted on October 31, 2009
Filed Under Liability & Litigation, Public Health Policy |

A lawsuit against cigarette maker Philip Morris USA may now move forward in US District Court after the Supreme Judicial Court of Massachusetts unanimously decided that the state’s negligence law is antiquated. While plaintiffs have historically had to show explicit injury before a defendant could be required to pay for diagnostic tests, if the jury sides with the plaintiff smokers in this case, Philip Morris could be required to pay for low-dose CT scans to screen for early-stage lung cancer.

The federal court asked the Supreme Judicial Court for a ruling on Massachusetts state law. Writing for the court, Justice Francis X. Spina wrote, “We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury, which should be compensable, even if the full effects are not immediately apparent.”

The federal suit is seeking class certification. If granted, the class would include anyone over fifty who has smoked at least one pack of Marlboros per day for at least twenty years, which would mean thousands of people from Massachusetts. At a cost of $400-500 each, annually, the tests would constitute a major financial blow, according to Edward L. Sweda, Jr., a lawyer with the Tobacco Products Liability Project at Northeastern University.

Philip Morris issued a statement that it wants the case dismissed since other state and federal courts have rejected such class certification of smokers’ claims. According to Murray Garnick, senior vice president and associate general counsel for Altria, “Six of the last seven state supreme courts to consider the issue have refused to recognize claims for medical monitoring based on the risk of future injury.”

Although this ruling could lead to new opportunities for litigation against the tobacco industry, the Supreme Judicial Court specifically stated that it doesn’t automatically apply to other toxic tort suits. It still requires a plaintiff claiming emotional damages to present objective evidence of injury. Also, it does not purport to extend the loss-of-chance theory to toxic tort suits.

Boston Globe, October 20, 2009.

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