Mass. Court Clears Lawsuit Seeking Diagnostic Tests Paid by Tobacco Industry

Tobacco companies can be sued by smokers seeking to compel the firms to pay for diagnostic screenings for possible lung cancer, the Massachusetts Supreme Judicial Court has ruled.

The Boston Globe reported Oct. 20 that the court unanimously ruled that the smokers could sue even for liability even though they had not yet gotten sick.

“We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury, which should be compensable, even if the full effects are not immediately apparent,” wrote Justice Francis X. Spina for the court.

Plaintiffs in Massachusetts are seeking class-action status in federal court for the lawsuit, which seeks to require tobacco companies to pay for low-dose computer tomography scans that can detect early stage lung cancer. The suit targets Philip Morris, and lawyers want to include all state residents over age 50 who smoked a pack or more of Marlboro cigarettes daily for at least 20 years.

The tests cost $400-500 annually.

Tobacco companies are now facing a “new track of litigation that they haven’t had to deal with,” said Edward L. Sweda Jr., a lawyer with the Tobacco Products Liability Project at Northeastern University. “We’ll see over the next few years … It would be a major blow to them financially.”

Murray Garnick, senior vice president and associate general counsel of Philip Morris parent company Altria, said that “the overwhelming majority of federal and state courts have rejected class certification of smokers’ claims, including those seeking medical monitoring.”

“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,” said Garnick. Philip Morris is seeking to have the case thrown out in federal court.