Philip Morris not liable to pay LDCT scans, says fed judge

A New York federal judge has dismissed a class-action lawsuit that was seeking to force Philip Morris USA Inc. to pay for medical monitoring program for Marlboro smokers.

Judge Carol Bagley Amon of the U.S. District Court for the Eastern District of New York dismissed a medical monitoring claim, citing that because all cigarettes are dangerous, the company's failure to design a cigarette with less tar does not create a viable cause of action.

The lawsuit sought to force Philip Morris pay for annual low-dose CT (LDCT) scans for a certain class of New York-based smokers over the age of 50 who are at risk for, but not presently diagnosed with lung cancer. LDCT scans are used for early detection of lung cancer but are not generally covered by standard health insurance policies.

However, Philip Morris argued that everyone knew, at the time that the Marlboros at issue in this litigation were sold, that cigarettes, when used normally, put people at risk of developing lung cancer.

In her summary judgment, the judge said that the plaintiffs needed to plead the elements of a claim for strict product liability, negligent design or breach of warranty to prevail on their medical monitoring claim.

The court agrees with Philip Morris that the plaintiffs must plead and prove that Philip Morris's failure to produce and market a non-defective cigarette is the reason that the plaintiffs must now secure medical monitoring that includes LDCT scans.

The plaintiffs have failed to do this, however, because they have failed to plead that Philip Morris's allegedly tortious conduct is the reason that they must now secure a monitoring program that includes LDCT scans.

Because the plaintiffs concede their knowledge of the dangers of cigarettes, and the court thinks it irrelevant whether the plaintiffs thought their cigarettes could not be any safer, the court rejects the argument that Marlboros contained an implied warranty that Philip Morris breached, the judge wrote.

Philip Morris was represented by Winston & Strawn LLP and Shook Hardy & Bacon LLP while the plaintiffs were represented by Levy Phillips & Konigsberg LLP.

The case is Caronia et al v. Philip Morris USA Inc., case number 06-cv-00224 in the U.S. District Court for the Eastern District of New York.