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WARNING: Reading some news articles may make your head explode.
Tuesday, The Boston Globe reported, “The state’s high court said yesterday that cigarette maker Philip Morris USA may have to pay for diagnostic chest exams . . .
Have we given up on the whole “personal responsibility” thing?
Personally, I hate cigarettes. . . .
Remember, no one is forcing anyone to smoke.
As far as second-hand smoke…No one is forcing anyone to shop or eat at an establishment that allows smoking.
People make bad choices sometimes, but I’d rather be free to make a bad choice and suffer the consequences than be told how to live my life. . . .
I’m all for trying to convince smokers to stop. (I don’t want anyone to get lung cancer. Smokers, please think of your health!) But I’m not for making tobacco companies pay for other people’s choices.
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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. . . .
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.
Americans are quick to sue whomever they believe is behind the products and activities that put them in uncomfortable positions. It's easy to take money from giant corporations with bad reputations, and then play the victim of the capitalist monster. But this is a backward practice that only corroborates claims that Americans are indulgent and greedy - and eager to blame anyone but themselves. But it's time to stop wasting the resources of the courts and ask that American smokers, fast food consumers and general bad habit-holders take responsibility for their own actions and get themselves out of the problems they willingly get themselves into. Money won't cure cancer or heart disease, and it certainly can't pay for this country to start making smarter decisions.
In this case, it is not merely the risk of cancer of which the plaintiffs have notice, but the substantial increase in the risk of cancer, as reflected in their complaint. Because the harm involves subclinical changes that only will be discovered by a physician, notice most likely will take the form of advice by a physician, together with a recommendation for diagnostic testing conformably with the medical standard of care. In short, the statute begins to run when (1) there is a physiological change resulting in a substantial increase in the risk of cancer, and (2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method of lung cancer screening or surveillance.
As previously discussed, medical monitoring expense is the plaintiffs' only arguably provable damages. They could not have sued for pain and suffering or lost earning capacity. This is not a case where plaintiffs recovered damages for pain and suffering, lost earning capacity, but only some medical expenses based on existing medical technology. These plaintiffs, or so they allege, had absolutely no remedy until LDCT technology appeared. If they can establish these circumstances, which are unusual and perhaps unique to medical monitoring claims, then their claims are timely. This is a question that cannot be resolved on the record before us; it must be resolved on a motion for summary judgment or, if genuine issues of material fact remain, by a jury. The plaintiffs also must show that the standard of care of the reasonable physician did not call for monitoring of any precancerous condition prior to the statute of limitations period, not just that the technology at that time was less effective for monitoring.
We answer the second certified question in the negative, subject to determination as we have outlined it.
The state's high court said yesterday that cigarette maker Philip Morris USA may have to pay for diagnostic chest exams so smokers can get early warning they have developed lung cancer, possibly opening a new front in tobacco liability lawsuits.
In a unanimous ruling, the Supreme Judicial Court said Massachusetts law has an antiquated definition of negligence. Historically, plaintiffs had to show explicit injury, such as a broken leg, before the other party can be ordered to pay for diagnostic tests.
Writing for the court, Justice Francis X. Spina said that such legal thinking must change. "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,'' he wrote.
The court's decision means that a lawsuit filed by two Massachusetts smokers can move forward in US District Court.
Massachusetts' high court said today that cigarette maker Philip Morris USA may have to pay for diagnostic chest exams so smokers can get early warning they have developed lung cancer.
In a unanimous ruling, the Supreme Judicial Court said that Massachusetts law has an antiquated definition of negligence that must be updated. Historically, plaintiffs had to show explicit injury -- such as a broken leg -- before the other party can be ordered to pay for diagnostic tests. Writing for the court, Justice Francis X. Spina said that legal thinking had to change.
"Modern living has exposed people to a variety of toxic substances," Spina wrote. "Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure."
Spina added, "Our tort law developed in the late 19th and early 20th centuries ...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." . . .
"The overwhelming majority of federal and state courts have rejected class certification of smokers' claims, including those seeking medical monitoring," Murray Garnick, Altria senior vice president and associate general counsel, said 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.''
Modern living has exposed people to a variety of toxic substances. Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure. Our tort law developed in the late 19th and early 20th centuries . . . 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.MA Supreme Court Justice Francis X. Spina, writing for the court in the Donovan medical monitoring suit.
The highest court in Massachusetts ruled unanimously Monday that cigarette maker Philip Morris may have to pay for computerized chest scans for its customers in an effort to detect early-stage lung cancer.
In its ruling, the Supreme Judicial Court upheld a federal lawsuit filed in 2006 by three Massachusetts residents -- Patricia Cawley of Rockland, Kathleen Donovan of Randolph and James Teague of Lowell -- who each wanted a diagnostic chest exam known as a CT screening, but whose health insurance plans would not cover the scans.
Lawyers for the three plaintiffs -- all of them long-time smokers -- argued in the suit that Philip Morris should have to pay for their CT screens because the company had manufactured a product that contains a known carcinogen, putting its customers at high risk of lung cancer.
Boston attorney Neil T. Leifer is one of the plaintiffs' lawyers.
"We allege that Philip Morris made a defective product that contained carcinogens at a time when they could have made a safe product," Leifer said, "and as a result there are a lot of people who used their product and are at risk for lung cancer."
So, he says, Philip Morris should have to foot the bill for a test that could help save their lives.
Cigarette maker Philip Morris may now be sued by long term smokers who have not yet developed lung cancer, a Massachusetts court ruled Monday.
The Supreme Judicial Court's unanimous ruling gives a go-ahead to a group lawsuit in the state that seeks to force Philip Morris into paying for smokers' medical screening for lung cancer.
The "[court] said that Massachusetts law has an antiquated definition of negligence that must be updated," The Boston Globe reported. "Historically, plaintiffs had to show explicit injury -- such as a broken leg -- before the other party can be ordered to pay for diagnostic tests. Writing for the court, Justice Francis X. Spina said that legal thinking had to change."
In his opinion, Justice Spina explained that diseases caused by exposure to toxic substances are "often latent," the Globe added, "not manifesting themselves for years or even decades after the exposure."
Cigarette maker Philip Morris USA Inc. might have to pay for chest scans so long-time smokers can get early warning of lung cancer, the highest court in Massachusetts ruled today.
The Supreme Judicial Court ruled unanimously that under some circumstances, Massachusetts law recognizes a claim by individual smokers for medical monitoring even without the presence of an actual injury.
The ruling means a lawsuit filed by three Massachusetts smokers can move forward in U.S. District Court. If a jury decides in favor of the smokers, Richmond, Va.-based Philip Morris could be required to pay for low-dose computed tomography scans, which can detect early-stage lung cancer.
Philip Morris USA can be sued by cancer-free smokers seeking a court order that the company pay for medical monitoring for signs of the illness, the highest court in Massachusetts ruled.
Answering two state-law questions referred to it by a federal court where the smokers proposed a group lawsuit is pending, the Massachusetts Supreme Judicial Court today ruled that the long-term yet cancer-free smokers can pursue their monitoring claim according to state law.
“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,” the high court said.
Philip Morris USA, the maker of Marlboro cigarettes, is a unit of Richmond, Virginia-based Altria Group Inc. In a statement issued by an in-house attorney, the company disagreed with the court’s findings.
The smokers’ suit was filed in 2006 by Massachusetts resident Kathleen Donovan and two other people living in the state.
Tuesday, June 9th 2009, 9:00 AM - Courtroom One, Second Floor, John Adams Courthouse, One Pemberton Square, Boston . . .
SJC-10409 KATHLEEN DONOVAN & another vs. PHILIP MORRIS USA, INC.
FUTURE CALENDAR
Tuesday, June 9th 2009, 9:00 AM
Courtroom One, Second Floor, John Adams Courthouse, One Pemberton Square, Boston . . .
03/05/2009 #1.1 Does the plaintiffs' suit for medical monitoring, based on the subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state a cognizable cliam and/or permit a remedy under Massachusetts state law? If the plaintiffs have successfully stated a claim or claims, has the statute or limitations governing those claims expired?