Appeals court says smokers can’t sue to get monitoring for future illness - The Buffalo News
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Appeals court says smokers can’t sue to get monitoring for future illness

ALBANY – The world’s largest tobacco company scored a major legal victory this morning when the state’s highest court said Philip Morris does not have to pay for medical monitoring of smokers who have not shown signs of lung cancer or other disease but who fear that they might someday become ill.

The 4-2 decision by the Court of Appeals saves Philip Morris potentially huge amounts of money, though the two dissenting judges said the court missed an opportunity to save lives.

The four-judge majority, in a decision written by Judge Eugene F. Pigott, said New York law does not permit tort liability claims without actual harm being first experienced.

“A threat of future harm is insufficient to impose liability against a defendant in a tort context ... The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state’s tort system,’’ Pigott wrote.

The ruling had Philip Morris declaring a legal victory.

“The New York Court of Appeals has joined with many other courts throughout the country in rejecting such a sweeping new cause of action,’’ Murray Garnick, senior vice president at Altria Client Services, the parent company of Philip Morris, said in a written statement.

The class action case was brought by three Marlboro smokers from New York who are all over the age of 50 and have been smoking for at least 20 years. While they claimed Philip Morris was negligent because of the health impacts of its cigarettes, they did not seek punitive damages against the company that manufactures Marlboro, the nation’s biggest selling cigarette brand. But they wanted the Virginia-based company to fund a court-supervised medical monitoring program so they would have a better chance of detecting early the presence of any lung cancer.

Victoria Phillips, a Manhattan lawyer who represented the three women with the lawsuit against the tobacco giant, said courts in Massachusetts have ordered medical monitoring for smokers.

“Our hope was to achieve a similar result in New York, to permit a class of persons at increased risk of developing lung cancer to seek surveillance, and dramatically improve their chance of survival. Despite the ruling today, however, it is worth noting that medical monitoring can still be pursued in New York albeit as a form of damages,’’ she said in a statement.

The state court issued its ruling in response to questions posed to it by the U.S. Court of Appeals for the Second Circuit, which is hearing the class action case against Philip Morris. The state’s ruling essentially means that the federal court cannot order Philip Morris to pay for the medical monitoring program for New York smokers who worry they might someday come down with lung cancer or some other smoking-related disease.

“We do not deny that there are significant policy reasons that favor recognizing an independent medical monitoring cause of action,” Pigott wrote. But the court worried that ruling against Philip Morris could permit tens of millions of people to “flood the courts” with claims against companies for physical harm feared but not yet actually sustained.

Moreover, permitting people to recover medical monitoring costs without first proving a physical injury “would lead to the inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure,” Pigott wrote.

But Chief Judge Jonathan Lippman, writing the dissenting opinion, said the court missed an opportunity to save lives. “Rarely are we presented with a case more worthy of the age-old maxim that equity will not suffer a wrong without a remedy,” the judge wrote. He said the court could have helped the plaintiffs get medical monitoring care “capable of forestalling profound suffering and death.” He noted lung cancer is the leading cause of cancer death in the United States, and that smoking is responsible for up to 90 percent of lung cancer deaths.

The judge said medical advances have developed low-dose computerized tomography scanning of the chest that could help smokers detect the presence of lung cancer at an early and treatable stage.

“Where a defendant’s alleged misconduct causes severe harm, and the opportunity exists to save lives and alleviate suffering, countervailing public policy considerations must be extraordinarily compelling to justify such an absolute failure of justice,” Lippman wrote in the dissent.


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