Massachusetts Court Says Smokers’ Lawsuit Can Go Forward

Cigarette maker Philip Morris USA Inc. might have to pay for chest scans so long-time smokers can get early warning of lung cancer, the highest court in Massachusetts ruled.

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, Richmond, Va.-based Philip Morris could be required to pay for low-dose computed tomography 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.

The smokers argued that even though they have not been diagnosed with lung cancer, they have received an injury _ damages to the tissues and structures of their lungs _ that gives then 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 SJC 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.

Philip Morris argued that the smokers have not shown that they have suffered physical harm.

A lawyer for Philip Morris said six of the last seven state supreme courts to consider similar cases have refused to recognize claims for medical monitoring based on the risk of future injury.

“We disagree with today’s opinion because it could allow plaintiffs, who have suffered no manifest injury, to pursue claims for court supervised medical monitoring by showing physiological changes that caused a substantial increased risk of future injury,” Altria Group Inc., the parent company of Philip Morris, said in a statement.

“It is important to note that the opinion of the court is limited to the narrow issue of whether the plaintiffs can pursue their claim and does not make any findings related to class certification or liability.”

The SJC 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.

The court said that in modern life, people are exposed to a variety of toxic substances and may contract illnesses that do not manifest themselves for years or even decades after the exposure.

“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,” Justice Francis Spina wrote for the court in the unanimous ruling.

The court said the smokers must prove that Philip Morris’s negligence caused them to become exposed to a hazardous substance that produced, at least, “subcellular changes that substantially increased the risk of serious disease, illness, or injury.”

They must also show that a medical test for reliable early detection exists, and that early detection, combined with treatment, will significantly reduce the risk of death or the severity of the disease. Finally, they must show that such diagnostic examinations are reasonably and periodically necessary.