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The plaintiffs in this medical monitoring class action were 250,000 current and former smokers living in West Virginia. The defendants were the major tobacco companies — Brown & Williamson Tobacco Corp., Philip Morris Inc., R.J. Reynolds Tobacco Co. and Lorillard Tobacco Corp. The plaintiffs contended that the tobacco companies produced a defective product that exposed them to increased risk of disease and that the companies therefore should pay for medical monitoring to determine if the plaintiffs already had lung cancer or chronic obstructive pulmonary disease. The plaintiffs were also seeking medical monitoring in the future. This was the first such class action against the industry to go to trial; a similar class action is pending in Louisiana. The plaintiffs’ basic contentions were that they had been exposed to proven toxic substances, that there are tests available for early detection of disease and that the tobacco companies ought to pay for these tests. The plaintiffs also argued that, even if there was no proof that monitoring extends life, at least it would give the plaintiffs more time to put their affairs in order. The defendants called medical monitoring both unnecessary and possibly dangerous. While the plaintiffs demanded CT scans to detect early stages of cancer or pulmonary disease, Philip Morris defense counsel Samuel Klein said that “no public health organization in the United States recommends [them]. They’re not proven to be safe, reliable or effective.” The gold standard for any medical testing, argued the defense, is whether the test will extend a patient’s life. “These tests will kill people who would otherwise not have died,” Klein said, adding that there is also no reason for follow-up testing. “If you want to reduce your risks of disease, quit smoking.” On Nov. 14, a Wheeling, W.Va., jury found no defect, negligence, breach of promise or willful and wanton misconduct. An appeal is expected. Plaintiffs’ attorneys: Scott Segal, Segal Law Firm, Charleston, W.Va.; Fred Baker, Ness Motley Loadholt Richardson & Poole, Charleston, S.C. Defense attorneys: Samuel Klein and Sean Wajert, Dechert, Philadelphia; Jeffrey Furr, Womble Carlyle Sandridge & Rice, Winston-Salem, N.C.; Frank Woodside, Dinsmore & Shohl, Cincinnati; William Newbold, Thompson Coburn, St. Louis.

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