SJC: Philip Morris may have to pay for diagnostic tests for smokers

Massachusetts’ high court said today that cigarette maker Philip Morris USA may have to pay for diagnostic chest exams so smokers can get early warning they have developed lung cancer.

In a unanimous ruling, the Supreme Judicial Court said that Massachusetts law has an antiquated definition of negligence that must be updated. Historically, plaintiffs had to show explicit injury — such as a broken leg — before the other party can be ordered to pay for diagnostic tests. Writing for the court, Justice Francis X. Spina said that legal thinking had to change.

“Modern living has exposed people to a variety of toxic substances,” Spina wrote. “Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure.”

Spina added, “Our tort law developed in the late 19th and early 20th centuries …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.”

The SJC said a federal class action lawsuit filed in 2006 against the cigarette maker by Patricia Cawley of Rockland, Kathleen Donovan of Randolph is now permitted under state law. (A third person, James Teague, has dropped out of the case, attorneys said.) The smokers had sued the cigarette maker demanding the company pay for low-dose computed tomography (LDCT) scans of the chest to get early warning of the disease.

In a statement issued after the SJC ruling, Philip Morris said the company will still try to get the case tossed out of US District Court in Boston. The company also said that state and federal courts have rejected the legal reasoning embraced by the SJC today. The cigarette maker is part of the Altria Group.

“The overwhelming majority of federal and state courts have rejected class certification of smokers’ claims, including those seeking medical monitoring,” Murray Garnick, Altria senior vice president and associate general counsel, said in a statement. “Six of the last seven state supreme courts to consider the issue have refused to recognize claims for medical monitoring based on the risk of future injury.’’

Neil Leifer, one of the plaintiff attorneys, said in a telephone interview today that the goal of the lawsuit is to make Massachusetts a healthier place. “Our goal all along has been to try and use this (litigation) for early detection, which can save lives,’’ the Boston attorney said. “If we can do that, then we will have done a good thing.’’

In its decision, the SJC also laid out the rules for statute of limitations for other smokers who may join the class action lawsuit.

“In short, the statute begins to run when there is a physiological change resulting in a substantial increase in the risk of cancer, and that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method of lung cancer screening or surveillance,” Spina wrote.

While directly addressing lawsuits involving smoking, the SJC explicitly said its thinking in today’s ruling does not automatically apply to other parts of the 21st century’s toxic environment.

“We leave for another day consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary although no symptoms or subclinical changes have occurred,’” Spina wrote.

Lawrence Cetrulo, a Boston attorney not involved in the case but who has spent 30 years representing companies being sued in so-called “toxic tort’’ cases, said the SJC’s ruling is also remarkable for what it did not do.

Cetrulo said the ruling did not create the right to sue someone claiming they faced an increased risk of cancer from a product or the environment, it still requires someone claiming emotional damages to present objective evidence of the injury, and does not create medical monitoring programs run by the courts. Further, it does not extend what lawyers call the “loss of chance’’ legal theory to toxic torts.

“There is going to be a lot of drum beating by people who represent plaintiffs, claiming that this moves the needle in Massachusetts dramatically in favor of consumers,” Cetrulo said. “Yes, it’s a loss for the defense…but I don’t think it moves the needle very much.”


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