ParfumGigi@aol.com

The National Law Journal

11-21-2006

A group of long-term Marlboro smokers has filed an action in federal court in New York to force Marlboro maker Philip Morris USA Inc. to give them regular low-dose CT scans to catch possible early signs of lung cancer.

The action is unusual because it seeks only medical screenings for people whose smoking habit has put them at 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 one's 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 by 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."

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 lawsuits 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 have 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.