FOR IMMEDIATE RELEASE                                                                                         
Contact: Edward L. Sweda, Jr. (857) 753-9560
or e-mail to media[at]tplp.org

October 19, 2009                                                                                                                                     

Massachusetts Supreme Judicial Court Allows
Medical Monitoring as Remedy in Class Action Suit Against Philip Morris

Today the highest court in Massachusetts allowed plaintiffs representing Marlboro smokers (age 50+ who have smoked an average of 20 or more years at 1 pack/day) who have not exhibited cigarette-caused diseases but are at an increased risk for them to move forward with a potential class action suit seeking a court-supervised medical monitoring program. The unanimous decision in Donovan v. Philip Morris USA, Inc., may be found here.

Cutting edge diagnostic techniques such as the LDCT (low dose computerized tomography) scan can facilitate early diagnosis of cigarette-caused lung cancer and theoretically improve a patient's chances for survival. Medical monitoring is legally controversial because it requires the defendant to make payments to fund diagnostic procedures when no injury caused by its products or conduct is apparent.

Courts in D.C. (1997), Nevada (2001), Illinois (2001), and Oregon (2008), have rejected medical monitoring as a remedy in cigarette litigation.  In West Virginia and Louisiana, juries have rejected medical monitoring claims against cigarette companies. Other states' approaches to medical monitoring may be found here.

 What is significant about the Donovan decision is that the Court determined that an overhaul of Massachusetts' torts system is overdue to better address the types of harm that we are now seeing.  Justice Spina writes:

Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. 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 goes on to say:

When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.

Mark Gottlieb, Director of the Tobacco Products Liability Project (TPLP) at Northeastern University School of Law in Boston noted: "Today's decision is an important step in compelling cigarette companies to take responsibility for the enormous medical risk that their addictive and defective products create for their customers.  Whether through LDCT scans or other monitoring, smokers should have a specific program funded by cigarette companies to help reduce the grim odds that their products will cause terminal illness and premature death."

Richard Daynard, Professor of Law at Northeastern University School of Law in Boston added that," tobacco industry-funded prevention screening to reduce fatal lung cancer caused by Marlboro smoking would be money well-spent."

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            The Tobacco Products Liability Project (TPLP) is a project of the Public Health Advocacy Institute, which is based at Northeastern University School of Law in Boston.