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National Cancer Institute Study may Affect Cigarette Litigation

November 4th, 2010

Results of a study released today by the National Cancer Institute suggests that heavy smokers may be able to reduce the chances of dying from lung cancer through low-dose helical computed tomography (CT) scans. In a randomized national trial of more than 53,000 current and former heavy smokers, CT scans led to outcomes with 20% fewer deaths from lung cancer.

This finding will likely play a very significant role in several class action lawsuits against Philip Morris which seek to have the company pay for periodic CT scans for heavy Marlboro smokers.  One such case, Donovan v. Philip Morris, has been certified as a class action in federal court in Massachusetts. In 2009, the Massachusetts Supreme Judicial Court recognized medical monitoring as a valid cause of action (the Harvard Law Review discusses this decision here in a pdf).A similar case is awaiting a decision on class certification in New York: Caronia v. Philip Morris. The class in both cases are represented by the firm of Levy Phillips & Konigsberg.

The important thing about this and similar cases is that they are on behalf of people who are not yet suffering from lung cancer from smoking but who are at dramatically increased risk for the disease.  Most health insurance plans will not cover CT scans, even for heavy smokers.  Therefore, the people at the highest risk for lung cancer do not usually benefit from this diagnostic procedure.  However, until today, there was not as clear a case to be made that CT scans would substantially benefit heavy smokers.   Risks from these procedures include possible unnecessary radiation exposure and complications from further diagnostic procedures subsequent to an inconclusive scan.

The only case of this sort to go to trial did so twice (due to a mistrial) and resulted in a defense verdict. That case was Blankenship v. Philip Morris. The findings from the NCI study released today might very well have led to a different result there and in pending and future cases.

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