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US: Marlboro Smokers' Group Names Philip Morris in Suit


by Melanie WarnerThe New York Times
January 20th, 2006

A group of long-term Marlboro smokers filed an unusual lawsuit yesterday against Philip Morris USA, seeking to require the company to pay for medical tests to detect early-stage lung cancer.

While most tobacco-related lawsuits have sought billions of dollars in punitive damages, this suit, filed in Federal District Court in Brooklyn, asks that Philip Morris USA, the maker of Marlboro cigarettes and a unit of Altria, be required to pay for low-dose CT scan tests, a new method for identifying potentially cancerous lesions in the lungs.

The suit, which seeks class-action status, would include smokers in New York State who are 50 or over, have been smoking at least a pack of Marlboros a day for 20 years and have not been diagnosed with lung cancer.

Jerome H. Block, a lawyer at Levy Philips & Konigsberg in New York who filed the suit, said it was intended to save lives by getting smokers tested early.

"Hopefully, this suit will change things so that we will be dealing with lung cancers that are caught when they can be treated," Mr. Block said. "Today, most detection happens when cancer is already advanced."

Mr. Block said he did not have a specific number of people who could be included in the suit, but he estimated that it could be in the tens of thousands.

Two previous attempts to hold cigarette companies liable for medical monitoring have failed. A Louisiana jury in 2003 and a West Virginia jury in 2004 rejected plaintiffs' requests for medical monitoring, including low-dose CT scans.

Since those cases were decided, Mr. Block said, the use of low-dose CT scans for lung cancer detection has become more established.

The tests, which can be done on existing CAT scan machines using radiation doses that are 70 percent less than standard levels, do not conclusively detect lung cancer. Patients who test positive for lesions could undergo a PET (positron emission tomography) scan or a biopsy. If those procedures, which are typically covered by insurance, indicate the presence of cancer, a patient would then likely undergo surgery.

Robert Smith, director of Cancer Screening at the American Cancer Society, said that the CT scan was very effective in the early detection of lung cancer and that a major trial was under way to determine how effective it might be in reducing deaths from lung cancer.

Dr. Steven Markowitz, a professor for environmental sciences and director of the Center for the Biology of Natural Systems at Queens College, said that most lung cancer was detected only after patients started to experience an intense shortness of breath or coughed up blood.

"At that point their doctor will do a chest X-ray and see a mass that's quite large," said Dr. Markowitz, who has been using low-dose CT scans to detect cancers in nuclear energy workers for the Energy Department.

According to the American Cancer Society, lung cancer, once detected, kills 85 percent of those afflicted within five years.

The lawsuit seeks to have Philip Morris pay for low-dose CT scans by proving that the design of Marlboro cigarettes was defective and could be made safer. Mr. Block said the case would use the testimony of former Philip Morris employees given during other tobacco cases, including the continuing Justice Department suit. New York law requires that manufacturers make products that are reasonably safe.

He said he wanted Philip Morris to set up a fund to pay for annual tests, which cost about $500 each, because most insurance plans do not cover them.

Philip Morris said it had no comment because it had not seen the complaint.

The latest suit comes amid a brightening litigation picture for Philip Morris. In December, the Supreme Court of Illinois threw out a $10 billion judgment in a class-action suit that had accused the company of deceiving smokers by marketing its "light" cigarettes as having lower levels of tar and nicotine.

The decision averted what would have been a major financial blow to Philip Morris and gave investors reason to believe that the company's litigation problems were starting to ease.

The company is still awaiting a decision from the Florida Supreme Court in the long-running class-action suit. In 2003, an appeals court overturned a record $145 billion damage award; the Supreme Court is expected to rule soon on whether that rejection was appropriate.





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