Malboro Smokers May Still Obtain Medical Monitoring

     MANHATTAN (CN) – The 2nd Circuit called for guidance as to whether longtime Marlboro smokers can force Philip Morris to cover medical-monitoring costs they face.
     Affirming a judge’s decision to grant the tobacconist summary judgment, the federal appeals court said that Marcia Caronia, Linda McAuley and Arlene Feldman could not sustain claims for negligence, strict liability and breach-of-warranty claims.
     The New York Court of Appeals, the state’s highest court, should determine whether the trio has a “free-standing equitable claim for medical monitoring,” according to the ruling.
     Caronia, McAuley and Feldman had sued Philip Morris in January 2006, initially seeking to pursue it as a class action. They are all over 50 years old and either still smoke Marlboros or quit in the year before filing suit.
     Each smoked Marlboros for at least 20 “pack-years,” a term that is calculated by multiplying the number of packs of cigarettes smoked per day with the number of years. A 20 pack-year smoker, for example, likely smoked two packs a day for 10 years.
     Although none of the plaintiffs have been diagnosed with lung cancer or are being investigated for suspected lung cancer, their fourth amended complaint asserted that they “are at significantly increased risk for developing lung cancer as a consequence of their use of Marlboro cigarettes … specifically as a consequence of the excess quantities of carcinogens delivered by Marlboro cigarettes.”
     They said Philip Morris knew all along that it was possible to lower the amount of carcinogens in its cigarettes, but that it “purposely designed all of its Marlboro cigarettes to deliver an excessive amount of carcinogens when smoked by humans.”
     Instead of compensatory or punitive damages for their claims, the trio wanted Philip Morris to fund a medical-monitoring program for individuals who are risk of lung cancer from smoking the company’s cigarettes.
     They noted that lung cancer is often curable when found at an early stage. They also alleged that a recently developed medical screening procedure known as Low Dose CT Scanning of the chest (LDCT), has become available, though it is not a benefit in many, if any, insurance plans.
     It is “a modest annual expense [of] less than five hundred ($500) dollars per patient per year,” according to their third amended complaint, and involves “a lower dose of radiation than is associated with an annual mammogram.”
     A three-judge panel of the 2nd Circuit said it is unsure after looking at state-law precedent whether a plaintiff may maintain an independent cause of action for medical monitoring.
     In the Massachusetts case, Donovan v. Philip Morris USA, for example, a court allowed a group of 20 pack-year smokers to sue for LDCT medical monitoring, rejecting claims that “medical monitoring could not be ordered without a showing by the plaintiffs of ‘physical harm manifested by objective symptomology.'”
     That court also noted how the roots of tort law lie in the 19th and 20th century, when such lawsuits mostly involved cases of “blunt trauma and mechanical forces.”
     It said tort law had to “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.”
     Looking at cases across the United States, “most of the courts that have concluded that a plaintiff who has not suffered physical injury from tortious exposure to hazardous substances may maintain a cause of action for medical monitoring have elaborated on the elements necessary to prevail on such a claim,” Judge Amalya Kearse wrote for a three-member panel. “The lists of elements are similar, but not identical.”
     Though the 2nd Circuit can surmise the state-law intent where “the governing principles are uncertain or ambiguous,” Kearse said no New York court has directly addressed the medical-monitoring question under New York State law.
     The task now falls to the Court of Appeals to decide whether state law allows an independent cause for medical action, and when the statute of limitations begins – at the time of exposure or when new screening becomes available.
     “We do not intend this articulation of the above specified questions to limit the scope of the analysis by the Court of Appeals, and we invite the Court of Appeals to expand upon or alter these questions as it deems appropriate,” Kearse added.
     The answer, the 2nd Circuit court stated, “reflects value judgments and important public policy choices that the New York Court of Appeals is better situated than we are to make.”

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