Court Affirms Smokers’ Claim in Marlboro Cigarettes Class Action

A Massachusetts federal judge won’t dismiss the remaining claim in a class action lawsuit brought by healthy Marlboro smokers seeking to hold tobacco giant Philip Morris accountable for medical monitoring under the Chapter 93A Massachusetts consumer protection law. The plaintiffs had lost all but this claim in a recent jury trial.

U.S. District Judge Denise J. Casper rejected Philip Morris’ arguments that a decision to establish the medical monitoring program would be unconstitutional. The jury’s verdict as to the Massachusetts General Law Chapter 93A consumer protection claim was advisory only, Philip Morris argued.

“The jury rendered a binding verdict on the issue of defect with respect to the warranty claim; the warranty and 93A claims are substantively identical; this court cannot make findings on the 93A claim without reexamining the jury’s defect finding; and the Seventh Amendment forbids such a reexamination,” Philip Morris wrote.

Named plaintiffs Kathleen Donovan, Patricia Cawley, James Teague and Laurence O’Kelly filed the class action complaint nearly 10 years ago in December 2006, seeking to have the company pay for low-dose computer tomography (LDCT) to detect early signs of smoking-related diseases. They brought the class action lawsuit on behalf of certain Massachusetts residents who smoke or have smoked Marlboro cigarettes, contending that LDCT medical monitoring is necessary to detect cancers at an early stage, when treatments are more effective and less debilitating.

The lawsuit was filed in 2000 after plaintiffs alleged the Altria Group Inc unit violated Missouri’s Merchandising Practices Act in marketing Marlboro Lights. Smokers in the lawsuit claimed that Philip Morris manufactured a defective cigarette knowing it could have made a safer product with fewer carcinogens.

In 2010, Judge Casper certified a single class covering Massachusetts residents age 50 and up who have smoked packs of Marlboro cigarettes for at least 20 years. In February, a jury in St. Louis, Missouri rejected a request for about $1.8 billion in damages against Philip Morris USA in a class action lawsuit that claimed the company misled smokers about the health risks of “light” cigarettes.

Philip Morris attorneys said cigarette buyers knew the hazards of smoking and that the product isn’t defective.

Following the 10-day trial, the jury on Feb. 10, answered “no” to the question, “have the plaintiffs shown, by a preponderance of the evidence, that the Marlboro cigarettes produced by the defendant are defective and unreasonably dangerous?” Because the jury answered “no” to the question, it did not reach the medical-monitoring questions.

However, before the verdict was read, Judge Casper said the court would issue its own findings and conclusions on the Chapter 93A claim.

Philip Morris stated the Seventh Amendment to the U.S. Constitution holds that no fact tried by a jury should be re-examined in any court in the United States. The company argued that when two claims in a case present factual issues that are common, the constitutional provision prohibits the court from making findings on one claim that depart from a jury’s findings on the other.

“A contrary rule would effectively nullify the right to a jury trial on the common-law claim,” Philip Morris wrote. “Indeed, that is exactly why the Reexamination Clause exists as a separate requirement: to prevent a party from circumventing its opponent’s right to a jury trial simply by bringing a nonjury claim that presents common factual issues.”

However, Judge Casper ruled that the 93A Massachusetts consumer protection law claim will be decided by the court, and denied Philip Morris’ motion to dismiss the last remaining claim.

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

The Marlboro Healthy Smokers 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.