Class of Smokers Can Press Philip Morris

     (CN) – A federal judge refused to decertify a class that wants Philip Morris to provide medical screening for early signs of lung cancer.
     Kathleen Donovan and Patricia Cawley filed a 2006 federal class action on behalf of Massachusetts smokers, seeking future damages for medical monitoring because of their exposure to cigarette smoke.
     As relief, they wanted the court to supervise a screening program involving low-dose computed tomography (LDCT) that could identify and diagnose lung cancer in the early curable stages.
     Harvard University medical professor Arnold Epstein and an economist Gerry Oster, whom the class tapped as expert witnesses, estimate that such a program would include 36,671 eligible participants, run for 28 years, and have a total cost of over $187 million.
     The Massachusetts Supreme Judicial Court informed the trial court found that the class had a cognizable claim under state law for medical monitoring based on the known increased risk of lung cancer from exposure to cigarette smoke.
     With that answer, the District of Massachusetts certified a class of current smokers, age 50 and older, who have smoked Marlboro cigarettes for at least 20 “pack years” and have not been diagnosed with lung cancer. A pack year is the average number of packs of cigarettes smoked per day, multiplied by the number of years the person has smoked.
     But Philip Morris moved to decertify the class after the Supreme Court’s ruling in Wal-Mart v. Dukes, arguing that “several intervening developments in the relevant law and facts require reconsideration of the court’s order certifying a class in this action.”
     U.S. District Judge Denise Casper refused to decertify last week, ruling that “the court’s prior certification decision, which was the result of a half-decade’s worth of diligent advocacy by the parties and thorough review by the court before the instant case was transferred to this session, will stand.”
     In Dukes, the Supreme Court held that “monetary relief that is not incidental to injunctive or declaratory relief cannot be certified for class treatment,” Casper noted.
     She continued: “At base, Philip Morris relies on Dukes less as a post-certification change in controlling law that makes any material difference in the analysis in this case and more as the basis of for resurrecting an argument that was argued and considered by the court: that ‘the relief sought by plaintiffs, even if it is ‘equitable’ in nature – is clearly not ‘injunction’ because there is no such thing as ‘an injunction to pay money.'”
     Quoting its prior decision, the court said: “The plaintiffs are not asking for an injunction that orders the payment of money. They are seeking a specific, equitable remedy. Simply because an injunction requires the defendant to pay money does not convert it into a monetary action.”
     Additionally, the class has not suggested that “a cash award of $187,461,720 shared among the class members would provide relief that would be as certain or complete as the LDCT program the plaintiffs actually seek. Philip Morris overestimates the importance of the fact that the Epstein/Oster report includes a specific dollar estimate for the total cost of the program and underestimates the importance of the fact that the specific dollar amount identified in the report is only an estimate.”
     “Given the difficulty in precisely estimating the cost of relief to the plaintiffs, any money damages award would run the risk of overcompensating the plaintiffs, and the surest way for the court to avoid any such inefficiency is to fashion relief through an injunction rather than a money damages award,” she added.

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