Philip Morris may have to fund tests for smokers

By John R. Ellement
Globe Staff / October 20, 2009

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The state’s high court said yesterday that cigarette maker Philip Morris USA may have to pay for diagnostic chest exams so smokers can get early warning they have developed lung cancer, possibly opening a new front in tobacco liability lawsuits.

In a unanimous ruling, the Supreme Judicial Court said Massachusetts law has an antiquated definition of negligence. Historically, plaintiffs had to show explicit injury, such as a broken leg, before the other party can be ordered to pay for diagnostic tests.

Writing for the court, Justice Francis X. Spina said that such legal thinking must change. “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,’’ he wrote.

The court’s decision means that a lawsuit filed by two Massachusetts smokers can move forward in US District Court. The federal judge presiding in that case had asked the Massachusetts high court to rule on a question of state law before the lawsuit could proceed.

The federal suit is seeking class certification, which would allow thousands of other Massachusetts smokers to join the lawsuit, which covers people 50 or older who have smoked at least one pack a day of Marlboro cigarettes for at least 20 years. If a jury sides with the smokers, Philip Morris could be required to pay for each patient’s low-dose computed tomography scan, which can detect early-stage lung cancer. The court’s decision was legally significant, but narrowly drawn and currently only directly affects the pending class action lawsuit, lawyer and the court said.

But Edward L. Sweda Jr., a lawyer with the Tobacco Products Liability Project at Northeastern University, said the ruling could open a new avenue of legal action against Big Tobacco.

Tobacco companies could now be facing a “new category, a new track of litigation that they haven’t had to deal with,’’ he said. “We’ll see over the next few years. . . . It would be a major blow to them financially.’’

In a statement, Philip Morris said the company wants the case tossed out of federal court in Boston. The company also said other state and federal courts have rejected the legal reasoning embraced by the high court yesterday. The cigarette maker is part of the Altria Group.

“The overwhelming majority of federal and state courts have rejected class certification of smokers’ claims, including those seeking medical monitoring,’’ Murray Garnick, Altria senior vice president and associate general counsel, said in a statement. “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.’’

In a telephone interview yesterday, one of the plaintiffs, Patricia Cawley of Rockland, said she has smoked since she was 9 or 11 years old and continues to try to quit smoking, but has only sporadic success. She is 70 years old.

“There was never any money involved in this case as far as I was concerned,’’ the retired school bus driver said. “I’m worried that there might be a chance that I could have lung cancer. I don’t know how I would handle that. But I am not worried enough that I could make myself quit indefinitely. I am addicted. . . . I can’t stop.’’

Neil Leifer, one of the plaintiffs’ lawyers, said in a telephone interview yesterday that the goal of the lawsuit is to make Massachusetts a healthier place. “Our goal all along has been to try and use this [litigation] for early detection, which can save lives,’’ the Boston lawyer said. “If we can do that, then we will have done a good thing.’’

Boston lawyer Christopher Weld Jr. said tens of thousands of people could qualify as class members and that the tests cost $400 to $500 annually. He said many health plans pay for the diagnostic test.

While directly addressing lawsuits involving smoking, the Supreme Judicial Court explicitly said its thinking in the ruling does not automatically apply to other “toxic torts’’ lawsuits.

“We leave for another day consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary, although no symptoms or subclinical changes have occurred,’’ Spina wrote.

Lawrence Cetrulo, a Boston lawyer not involved in the case but who has spent 30 years representing companies being sued in “toxic tort’’ cases, said the SJC’s ruling is also remarkable for what it did not do.

Cetrulo said the ruling did not create a right to sue for someone who says he faces an increased risk of cancer from a product or the environment. The ruling still requires someone asserting emotional damages to present objective evidence of the injury and does not create medical monitoring programs run by the courts, Cetrulo said.

Further, it does not extend what lawyers call the “loss of chance’’ legal theory to toxic torts. “There is going to be a lot of drum beating by people who represent plaintiffs, claiming that this moves the needle in Massachusetts dramatically in favor of consumers,’’ Cetrulo said. “. . . I don’t think it moves the needle very much.’’

Material from the Associated Press was used in this report.

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