The Supreme Judicial Court ruled today that a group of 50-something Marlboro smokers who continue to smoke to this day can sue Philip Morris for the costs of ongoing lung-cancer screening.
The ruling by itself does not win anything for the plaintiffs, however, because it comes in the form of an opinion on Massachusetts law to a federal court that is actually hearing the case. But it clears the way for a possible suit under state law.
The residents charge that even though they continue to smoke despite widespread warnings about the dangers of smoking, Philip Morris is still to blame for their reduced lung capacity because it refuses to develop safer cigarettes. They are seeking money from the company to pay for ongoing Low-Dose Computed Tomography tests, which they say will detect lung cancer at an early stage if it develops.
The justices summarized their case:
The plaintiffs claim that cigarette smoke from Marlboro cigarettes continues to cause damage with each puff, inflicting new and additional bodily harm and substantially contributing to the risk of developing lung cancer. They further claim that the cumulative impact of smoking Marlboro cigarettes increases the alleged injury to each smoker in a dose response fashion, based on both the duration and intensity of exposure. The plaintiffs do not allege, however, any manifest smoking-related disease resulting from their use of Marlboro cigarettes at the present time. Rather, they claim that they are at a high and significantly increased risk of developing lung cancer as a consequence of their prolonged and continuing use of Marlboro cigarettes (twenty pack-years or more) and their age (fifty years old or more).
The court, which recognized the difficulties of dealing with tort laws developed in the 19th century, when injuries were typically sudden and brutal, rather than things that developed years or decades afterwards, concluded:
When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.