One Claim Left In Marlboro Cigarettes Class Action Lawsuit

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Last week, in a class action lawsuit alleging that Philip Morris should pay for smokers’ cancer screening, the cigarette company asked the federal judge to dismiss the one remaining claim left by the jury trial.

In the initial class action lawsuit, lead plaintiffs alleged that Philip Morris should pay for smokers’ cancer screenings because the company knowingly sold cancer-causing products to consumers. The case went to trial in January of this year and as a result the jury trimmed all but one consumer protection claim from the class action.

Philip Morris filed a motion to dismiss the remaining claim, arguing that it would be unconstitutional to retain the allegation. Philip Morris said that pursuing the consumer protection claim under the jury’s findings of fact would violate Philip Morris’s Seventh Amendment rights under the Re-Examination Clause.

“[If] the court were to find in plaintiffs’ favor on the 93A [consumer protection] claim, it would necessarily have to make a finding that flatly contradicts that of the jury: that Marlboro cigarettes are defective under the same standards,” wrote Philip Morris in it’s motion. “That is exactly what the Re-examination Clause forbids.”

In the initial class action jury trial, the plaintiffs argued that their proposed class of healthy Marlboro smokers should receive cancer screenings on Philip Morris’s dime. The plaintiffs wanted Class Members to receive annual scans using a new technology called low-dose tomography that can sense signs of cancer earlier than a chest X-ray. According to the plaintiffs’ class action, the “LDCT” scans would cost $500 each. The scanning program would have needed to last 28 years, making the cost approximately $190 million for the defendant.

At trial, the plaintiffs argued that since Philip Morris knowingly sold Marlboro smokers high-tar products that put them at higher risk for cancer, Philip Morris should be required to pay for LDCT scans even though they are more expensive than standard options. Philip Morris countered that Marlboro smokers knew the cigarettes were high in tar and chose to smoke them anyway, so the company shouldn’t be forced to pay for those decisions or compensate smokers for dangerous behavior.

At the conclusion of the first phase of the trial, the jury found in favor of Philip Morris, except for one claim. In response, the plaintiffs stated that the class action should continue to the second phase of the trial. The plaintiffs also argued against Philip Morris’s motion to decertify the class.

“In this latest motion, Philip Morris revives the entire catalogue of arguments it has raised since the beginning, all of which have already been rejected — some more than once,” said a representative for the plaintiffs. “Philip Morris offers nothing new that would affect the Court’s prior analysis and, seemingly, these arguments were made in an effort to preserve the arguments.”

The plaintiffs are represented by Kevin Peters of Arrowood Peters LLP; Steven Phillips, Victoria Phillips and Aryeh Taub of Phillips & Paolicelli LLP; Christopher Weld Jr. and Edward Foye of Todd & Weld LLP; and David Strouss of Thornton & Naumes LLP.

The Marlboro Cigarettes Class Action Lawsuit is Donovan, et al. v. Philip Morris USA Inc., Case No. 1:06-cv-12234, in the U.S. District Court for the District of Massachusetts.

UPDATE: On June 17, 2016, a Class of consumers who smoked Marlboro cigarettes asked a judge not to dismiss the only remaining claim in their Marlboro class action lawsuit that alleges the cigarettes were overly harmful and put smokers at risk of developing lung cancer.