Healthy Marlboro Smokers In Mass. Denied Lung Screening - Law360

I really have to hand it to Diane Sullivan - lead attorney for Philip Morris.  The jury in Donovan v. Philip Morris has rendered its verdict:  Marlboros are not defective and dangerous.  In my opinion the management of Philip Morris should be serving life without parole for their design of Marlboros.  The dominant brand of American cigarettes delivers more nicotine to smokers than any other - by design.  (I know as a former Marlboros addict.) Yet the lawyers for what is in my opinion a criminal enterprise have won a huge victory. - gwc

Healthy Marlboro Smokers In Mass. Denied Lung Screening - Law360

By Cara Salvatore

Law360, New York (February 10, 2016, 1:38 PM ET) -- Cigarette giant Philip Morris USA need not pay for annual lung screenings for a large class of currently healthy Marlboro smokers, a Massachusetts federal jury decided Wednesday, according to a Philip Morris spokesman.

(Credit: AP)

A class of tens of thousands of healthy Massachusetts Marlboro smokers wanted Philip Morris to pay for annual scans using low-dose computed tomography, or LDCT, a relatively new technology that can pick up cancer signs much earlier than a chest X-ray. The scans cost $500 each, and the Philip Morris spokesman said Wednesday that the annual screening program would have lasted 28 years and cost the company $190 million.

The jury began deliberating Tuesday afternoon after closing arguments and reached the verdict on Wednesday.

“This was the third case of its kind to go to trial, and in each the jury ruled in favor of Philip Morris USA," Altria Client Services senior vice president and associate general counsel Murray Garnick said in a statement Wednesday. Altria Group is the corporate parent of Philip Morris.

The two other trials were in Louisiana and West Virginia “in the early 2000s,” the company spokesman said. But medical-monitoring claims are still relatively new, and many states don’t allow them.

Donovan, Cawley and their class of smokers over age 50 are led by Steven Phillips of Phillips & Paolicelli LLP, who tried to bring a similar suit in New York and were shut down by New York’s high court. In Caronia v. Philip Morris, a deeply divided New York Court of Appeals barred the potentially costly new type of civil tort claim, which can be brought without an actual injury.

California, Louisiana, Pennsylvania and Massachusetts have explicitly allowed this new type of claim; the latter’s high court ruled in 2010 that medical-monitoring claims can proceed under a tight set of guidelines.

U.S. District Judge Denise Casper will now decide if there was a consumer-protection violation, according to Altria.

An attorney for the plaintiffs was not immediately available for comment.

A major study published in 2011, the National Lung Screening Trial, or NLST, drove government recommendations that longtime smokers age 55 to 74 get annual screenings. Some groups' recommendations stretch to 79.

"You don't want to be catching tumors the size of a baseball. You want to be catching the tumor that's the size of a [grain of] rice," plaintiffs' attorney Victoria Phillips of Phillips & Paolicelli told the jury of eight men and two women during opening arguments on Jan. 27.

The plaintiffs’ first witnesses, a pulmonologist and a thoracic surgeon, told the jury that LDCT can lower smokers’ lung-cancer mortality significantly because it detects abnormal tissue much earlier than X-rays do.

Recently retired thoracic surgeon Frederic Grannis, the second witness, told the jury that whatever the issues, LDCT allowed for vastly improved survival over X-rays.

“For most of my career, we didn’t have screening, and we would see a patient only when they had their first symptoms,” Grannis said, like coughing up blood, a headache and bone pain — symptoms whose appearance usually means a patient’s cancer is too advanced to be treated, much less reversed.

Philip Morris had maintained it could not be held accountable for the cost of the screenings. Its attorney, Diane Sullivan of Weil Gotshal & Manges LLP, said in opening arguments that there was no safer alternative to the Marlboros Philip Morris made because the market rejected a low-tar product that the company promoted heavily in the 1980s.

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

Philip Morris is represented by Kenneth Parsigian and Gwyn Williams of Latham & Watkins LLP, Diane Sullivan of Weil Gotshal & Manges LLP and Lauren Goldman of Mayer Brown LLP.

The case is Donovan et al. v. Philip Morris USA Inc., case number 1:06-cv-12234, in the U.S. District Court for the District of Massachusetts.

--Editing by Rebecca Flanagan.