Trial Begins in Marlboro Medical Monitoring Class Action Lawsuit

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Marlboro cigarette smokers headed to court against Philip Morris USA Wednesday to argue the tobacco company should be responsible for paying for yearly cancer screenings because they sold cigarettes that were overly harmful and put smokers at risk of lung cancer.

The trial opened on Jan. 27, and the Class of Massachusetts residents who were habitual Marlboro smokers asked a Boston jury to require Philip Morris to pay for low-dose computed tomography (LDCT) scans that can catch early signs of lung cancer. Use of LDCT in lung screening can lower the risk of lung cancer by as much as 20 percent, the plaintiffs claim.

Although the plaintiffs currently do not exhibit any signs of lung cancer, they argue Philip Morris should be on the hook to pay for their medical monitoring because the tobacco company knowingly sold dangerous cigarettes that had excessive amounts of tar.

The medical monitoring class action lawsuit was initially filed in 2006. Philip Morris repeatedly sought to decertify the Class, but its attempts were unsuccessful. In 2012, a federal judge refused to decertify a Class of current smokers who are aged 50 or older who have smoked Marlboro cigarettes for at least 20 pack years (a pack year is the equivalent of a pack a day for a year). Plaintiffs Kathleen Donovan and Patricia Cawley are serving as the Class representatives.

The plaintiffs say that the LDCT scans would cost $500 per Class Member per year. This relatively new technology is not yet widely available, but it can detect cancer earlier than the current standard options. In the nine years since the Marlboro class action lawsuit was filed, the value of LDCT in detecting cancer has been increasingly recognized. In fact, the Centers for Medicare and Medicaid Services started accepting claims for LDCT this month.

Even though the LDCT scans are more expensive than standard options, the plaintiffs argue Philip Morris should pay for it because their allegedly high-tar Marlboros put them at an increased risk of developing lung cancer.

Philip Morris asserts that it does not owe the smokers anything because they made the choice to smoke the high-tar cigarettes. Therefore, they willingly engaged in dangerous behavior and should not be compensated for it.

In response to assertions that it continued to manufacture the cigarettes with unnecessarily high tar and nicotine content even though it knew how to make safer cigarettes, Philip Morris stated that it had created a safer low-tar cigarette and promoted it in the 1980s, but the market rejected the product.

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 Feb. 10, 2016, A Massachusetts federal jury decided that cigarette manufacturer Philip Morris USA does not have to pay for the yearly cancer screenings of currently healthy Marlboro smokers.

UPDATE 2: On Mar. 10, 2016, Philip Morris asked the federal judge to dismiss the one remaining claim left by the jury trial.

UPDATE 3: 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.