Ex-Smokers Inch Toward Health-Monitoring Trial


     SAN FRANCISCO (CN) – Two former Marlboro smokers can sue Philip Morris for product liability in a bid to get the company to fund a medical-monitoring program, but they cannot do so as a class, a federal judge ruled.
     Burt Xavier and James Franklin filed suit against the Virginia-based tobacco company in May 2010, purporting to represent a class of asymptomatic smokers and recent quitters older than 50 who smoked a pack or two a day, amounting to about 146,000 cigarettes.
     “This action differs from the typical tobacco action because plaintiffs do not seek compensatory or punitive damages for personal injury or wrongful death,” U.S. District Judge William Alsup wrote. “Instead, the action seeks medical monitoring for healthy smokers in the form of low-dose CT scanning of the chest. According to plaintiffs, this scan is a new, largely unavailable technology that is safer than x-rays and far better at detecting lung cancer in its early stages. Early diagnosis dramatically improves survival odds.”
     Though Alsup previously dismissed “medical monitoring” as a stand-alone claim, it is still a possible remedy for their other allegations. The plaintiffs want Philip Morris to supply chest scans by creating a court-supervised screening program.
     Their lawsuit claims that Philip Morris USA, a subsidiary of the Altria Group, acted wrongfully because it consciously used excessive amounts of carcinogens, as part of a “gentlemen’s agreement” to increase profits among cigarette manufacturers, in its Marlboro cigarettes.
     The lawyers representing Xavier and Franklin also filed similar lawsuits in New York, Massachusetts and Florida. The New York case was dismissed; the Massachusetts case has been certified as a class action and is heading to trial; and the Florida action is in its infancy.
     In the California lawsuit at hand, Alsup agreed on April 18 to halve the claims against Philip Morris. In addition to ruling that the plaintiffs cannot sue for state-law violations of the Consumer Legal Remedies Act and breach of implied warranty, he also refused to certify the case as a class action.
     Xavier and Franklin can proceed with two claims for strict liability design defect and negligent design and testing. These counts survived the company’s motion for judgment on the pleadings and a separate motion for summary judgment.
     “Without commenting on the difficulties plaintiffs might face in proving the causation element of their design-defect claims, this order finds that they have adequately pled it,” Alsup wrote (italics in original).
     The judge bristled at Philip Morris’ attempt to undermine the plaintiffs’ design-defect claims.
     “Philip Morris argues that plaintiffs cannot meet this standard ‘[b]ecause both Plaintiffs admitted that they did not and would not have smoked the alternatively designed cigarettes they propose – and that they have not and would not smoke them even today, though such cigarettes are available and have been for some time,’ according to the 21-page ruling. “Such an admission would indeed be catastrophic for plaintiffs’ case, but they have made no such admission. The deposition testimony Philip Morris relies on to support this statement does not go nearly so far.” (Italics in original.)
     “Philip Morris failed to deliver on its bold promise that plaintiffs admitted categorically that they would not have smoked the safer cigarette proposed in the complaint,” Alsup found.
     Though Xavier had said he would not smoke the low-tar cigarettes currently on the market, because of their allegedly inferior taste, he can still prove that he would have smoked the better-tasting alternative cigarettes proposed in the complaint, Alsup ruled.
     Franklin likewise said he did not pay attention to tar options for cigarettes currently on the market. “This testimony might make Franklin a tougher sell to a jury, but it is not inconsistent with the theory that he would have smoked the safer cigarettes proposed in the complaint if Philip Morris had manufactured them and informed its customers of their attributes,” the judge wrote.
     Alsup also rejected an attempt to throw the case out under the statute of limitations.
     “Philip Morris asserts that California’s two-year limitations period for personal injuries applies to all of plaintiffs’ remaining claims for relief,” according to the ruling. “Plaintiffs do not dispute that the two-year period applies. Philip Morris, however, cites no evidence at all showing that plaintiffs’ claims accrued at any time before the complaint in this action was filed.” (Italics in original.)
     Alsup was similarly unmoved by the plaintiffs’ attempt to represent a class, saying it would be “futile” to even let them revise their definition of the class.

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