Philip Morris May Have to Pay for Smokers' Cancer Screening Tests

The Massachusetts Supreme Judicial Court, answering two certified questions from a federal judge, says tobacco giant Philip Morris USA might be required to pay for cancer screenings for former smokers who have not been diagnosed with smoking-related illnesses.

The state high court's ruling also establishes guidelines as to when smokers need to file such lawsuits in order for them to be considered timely.

In February U.S. District Judge Nancy Gertner of the District of Massachusetts asked the Supreme Judicial Court to resolve whether a putative class-action suit against Philip Morris in which former smokers are seeking medical monitoring presents a cognizable claim or remedy under state law.

If the suit states one or more claims, the judge asked the court to determine whether the limitations period pertaining to any valid claim has expired.

Plaintiffs Kathleen Donovan and Patricia Cawley seek to represent a statewide class of all healthy people over age 50 who have at least a "20 pack year" history of smoking Marlboros and who quit smoking within a year of the suit's filing.

A "pack year" is the equivalent of smoking one pack of cigarettes a day for a year.

The complaint, filed in the U.S. District Court for the District of Massachusetts, alleges breach of implied warranty and negligent design and testing.

The plaintiffs claim, among other things, that people who smoke the defendant's "light" cigarettes consume just as much tar and nicotine as those who smoke regular cigarettes.

They also say Philip Morris knew about but failed to market safer alternative designs.

The plaintiffs are not seeking money damages but want the defendant to pay for regular "low-dose, computed tomography" scans for all class members.

They say the proposed relief would cost about $500 annually per class member and would detect early-stage lung cancer, which is 80 percent curable.

Although low-dose CT scans are superior to common cancer screening methods such as X-rays and sputum cytology, the plaintiffs' health insurance does not cover the procedure, and conventional screening methods typically do not detect lung cancer until the prognosis is grim, the suit says.

Philip Morris has argued that the claims are time-barred and that Massachusetts law does not recognize a tort claim absent present a physical injury, something the plaintiffs are not alleging.

Plaintiffs Can Move Forward With Claims

The Supreme Judicial Court found the plaintiffs' claims valid.

"[T]he physiological changes with the attendant substantial increase in risk of cancer, and the medical necessity of monitoring with its attendant cost may adequately establish the elements of injury and damages," the high court said.

Current tort law was drafted years ago and must be updated to address toxic exposures, the justices added.

They noted that no class has been certified and that the court's ruling only applies to Donovan and Cawley.

To succeed, plaintiffs in such lawsuits must show that the defendant's negligence exposed them to a toxic substance that resulted in subcellular changes that increased their risk of serious injury and that reasonable medical testing for early detection will substantially lower that risk, the court explained.

The limitations period starts running when a physiological change occurs that substantially increases the risk of cancer and results in the need for accepted diagnostic testing, the high court added.

The timeliness of the plaintiffs' claims will be decided in future legal proceedings, it added.

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