X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A group of asymptomatic, long-term Marlboro smokers filed an action in federal court in New York to make Marlboro maker Philip Morris USA Inc. give them regular low-dose CT scans to catch early signs of lung cancer. The action is unusual because it seeks only medical screenings for people whose smoking habit has given them an increased risk of lung cancer, said plaintiffs’ attorney Jerome H. Block of Levy Phillips & Konigsberg in New York. “The sole relief we are seeking is that Philip Morris pay for a program of CT scans,” Block said. The scans should be annual, or “more frequent if something looks suspicious.” He noted that a recent article in The New England Journal of Medicine suggests that such a program would increase dramatically the chances of surviving lung cancer. Block represents Marcia L. Caronia and four other named plaintiffs on behalf of a class of New York residents 50 years of age or older who have smoked Marlboro-brand cigarettes for at least 20 “pack years”-an average of a pack a day for 20 years. Caronia v. Philip Morris USA Inc., No. 06-224 (E.D.N.Y.) Generally speaking, early diagnoses of lung cancer now occur happenstance, when doctors administering CT scans to patients with pneumonia or a broken rib, for instance, discover lesions and nodules that could be lung cancer, he said. “CT scans for people who might have cancer typically are not covered by medical insurance,” Block said. “This is for all those people out there who don’t have this covered and are at increased risk of lung cancer. It’s a huge issue from a public health point of view.” Viable legal theory? Block said that this action stands a good chance of survival because the class is confined to long-term smokers of a brand of Philip Morris products. But actions in the past seeking medical monitoring for smokers have not succeeded. William S. Ohlemeyer, vice president and associate general counsel of Altria Group Inc., Philip Morris’ parent company, said, “Nobody is opposed to medical monitoring as a public health tool. The question is whether this is a viable legal theory that can be pursued in a lawsuit.” Although plaintiffs’ counsel has coined “creative and innovative theories” in this instance, “most states don’t recognize medical monitoring as a remedy or cause of action.�We expect the case to be dismissed,” Ohlemeyer said. Smokers’ medical-monitoring class actions have been rejected by the majority of trial and appellate courts since the first one was filed in New Orleans federal court in 1994, according to Altria spokesman John Sorrells. The 5th U.S. Circuit Court of Appeals decertified a class seeking medical monitoring over variations in state law and the particulars of how a case would be tried against numerous tobacco defendants. Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996). Juries returned defense verdicts on medical-monitoring claims in the only two cases that made it to trial. Blankenship v. Brown & Williamson (In re Tobacco Litigation), No. 02-31157 (W.Va. 2004), and Scott v. The American Tobacco Co. Inc., No. 96-8461 (Orleans Parish, La., Dist. Ct.). An appeal argued last April is pending before the Louisiana 4th Circuit Court of Appeal.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.