Marlboro Cigarette Smokers Urge Judge to Keep Last Claim Alive

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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.

The Marlboro cigarette class action lawsuit went to trial in January, and a jury ruled that cigarette maker Philip Morris USA would not have to pay for yearly cancer screenings of healthy Marlboro smokers.

The plaintiffs had asked Philip Morris to pay for annual scans using low-dose computed tomography (LDCT), a new technology that can detect cancer much earlier and gives off less radiation than an X-ray.

After the trial, only one consumer protection claim remained unresolved in the Marlboro class action lawsuit.

In April, Philip Morris urged a judge to issue a judgment on the claim, arguing that a jury had previously concluded that the cigarettes weren’t defective and that a judgment finding otherwise would violate the Seventh Amendment’s re-examination clause.

According to court documents filed June 17, the plaintiffs claimed that Philip Morris’ arguments were “unpersuasive” and that its conclusions were made by distorting the record. They say that Philip Morris reached its conclusions “by omitting unfavorable testimony, stringing together out-of-context sound bites, and at times, quoting counsel’s questions rather than a witness’ response.”

The plaintiffs state that they would not refute every inaccuracy contained in Philip Morris’ 50-page filing, but would instead “highlight some of the most salient errors and omissions.”

They narrowed it down to 19 arguments against the alleged inaccuracies made by Philip Morris.

Essentially, the plaintiffs claim that Marlboro knew how to make cigarettes with lower tar but chose to continue manufacturing defective Marlboros with unnecessarily high tar and nicotine content that put smokers at an increased risk of lung cancer.

Philip Morris previously argued that safer cigarette products failed in the market. The plaintiffs shot back by stating that the question at issue is not whether a safer cigarette would have been commercially successful, but whether a safer design would have materially changed the product in the eyes of someone whose judgment is impaired by addiction.

According to the plaintiffs, consumers were not given adequate information about cigarettes in order to make an informed decision about what type of cigarettes to smoke—or whether they should start smoking at all.

“Indeed, Philip Morris and its fellow industry members spent decades perpetuating a false controversy about the addictive and carcinogenic nature of their products, long after a scientific consensus had developed,” they state.

The plaintiffs also refuted arguments by Philip Morris that smokers would not enjoy the taste of low-tar cigarettes, claiming that many addicted smokers have shown willingness to sacrifice the “flavor” of the cigarettes for better health and become acclimated to the “healthier” cigarette over time.

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