Massachusetts Supreme Court: Smokers Can Pursue Medical Monitoring Costs Against Philip Morris

By Andrew Longstreth

October 20, 2009

To the casual observer, tobacco litigation may seem very 1990s. But could it be making a comeback? A decision Monday by the Massachusetts Supreme Court hints that it’s trying.

The court ruled that plaintiffs in a purported class action pending in federal court can pursue claims against Philip Morris USA for medical monitoring expenses even though they have not been diagnosed with smoking illnesses. In a unanimous opinion written by Justice Francis Spina, the court noted that theories of negligence have to be updated. "We must adapt to the growing recognition that exposure to toxic substances may cause substantial injury which should be compensable even if the full effects are not immediately apparent," wrote Justice Spina.

The future of the case itself, brought in 2006 by three longtime Marlboro smokers, is far from certain. Boston federal district court judge Nancy Getrner, who asked the Massachusetts Supreme Court to address the negligence question, has yet to address class certification. The plaintiffs are seeking to represent smokers in Massachusetts aged 50 and older who smoked at least a pack a day for at least 20 years.

Edward Sweda, Jr., of the Tobacco Products Litigation Project told The Boston Globe that the decision could force tobacco companies to face a "new category, a new track of litigation they haven't had to deal with....It would be a major blow to them financially."

Philip Morris, which was represented by Sheila Birnbaum of Skadden, Arps, Slate, Meagher & Flom before the Massachusetts Supreme Court, downplayed the significance of the ruling. "The overwhelming majority of federal and state courts have rejected class certification of smokers’ claims, including those seeking medical monitoring,” said Murray Garnick, Altria senior vice president and associate general counsel, 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."

Steven Phillips of Levy Phillips & Konigsberg, an attorney for the plaintiffs, told us that in fact most states have not addressed medical monitoring. He called the Massachusetts opinion "carefully thought out," and predicted that other courts would find it persuasive. He was also upbeat about the prospects of class certification. "I rather like my chances," he said.

Advertisement

Advertisement