Massachusetts court advances smokers’ case against Philip Morris

Cigarette maker Philip Morris USA might have to pay for chest scans so longtime smokers can get early warnings of lung cancer, the highest court in Massachusetts ruled yesterday.

The Supreme Judicial Court ruled unanimously that under some circumstances, Massachusetts law recognizes a claim by individual smokers for medical monitoring even without the presence of an actual injury.

The ruling means a lawsuit filed by three Massachusetts smokers can move forward in U.S. District Court. If a jury decides in favor of the smokers, Henrico County-based Philip Morris could be required to pay for low-dose CT scans, which can detect early-stage lung cancer.

Lawyers for the Massachusetts smokers are seeking class certification, which would allow thousands more smokers in the state 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.

While medical-monitoring cases against the tobacco industry have been dismissed or failed at jury trials in several states, the Massachusetts ruling could trigger similar suits in other states, said Edward L. Sweda, an attorney for the Tobacco Products Liability Project at Northeastern University.

"More than 40 states have not ruled on this issue," Sweda said. "I am sure there will be plaintiff's lawyers in states around the country that will be citing the Massachusetts example."

Murray Garnick, Altria Group Inc.'s senior vice president and associate general counsel, said the company disagrees with the ruling and believes the case should be dismissed by the federal trial court.

"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," Garnick said in a statement from the company. "Furthermore, the overwhelming majority of federal and state courts have rejected class certification of smokers' claims, including those seeking medical monitoring."

The smokers argued that even though they have not been diagnosed with lung cancer, they have received an injury -- damage to the tissues and structures of their lungs -- that gives them a substantially increased risk of cancer. They claim the injury was caused by Philip Morris' negligence by manufacturing Marlboro cigarettes that contain a dangerous quantity of carcinogens, and that they are entitled to medical monitoring to determine whether they do contract cancer.

"It's a big step for the plaintiffs . . . for the court to recognize that there are types of harm that aren't always apparent to the naked eye," said Edward Foye, one of the smokers' attorneys.

The Massachusetts court was asked to rule on a question of state law by the federal judge who is hearing the lawsuit. The ruling means the lawsuit can proceed in federal court.

The state court compared the smokers to a pedestrian who is negligently struck by a motorist. The pedestrian is entitled to recover expenses for diagnostic tests to determine whether there are internal injuries even when no external injuries are present, the court said.

Staff writer John Reid Blackwell and The Associated Press contributed to this report.