The state’s high court said that cigarette maker Philip Morris USA may have to pay for diagnostic chest exams so smokers can get early warning they have developed lung cancer, possibly opening a new front in tobacco liability lawsuits.
In a unanimous ruling, the Supreme Judicial Court said Massachusetts law has an antiquated definition of negligence. Historically, plaintiffs had to show explicit injury, such as a broken leg, before the other party can be ordered to pay for diagnostic tests.
Writing for the court, Justice Spina said that such legal thinking must change. “We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury, which should be compensable, even if the full effects are not immediately apparent,’’ he wrote.
The court’s decision means that a lawsuit filed by two Massachusetts smokers can move forward in US District Court. The federal judge presiding in that case had asked the Massachusetts high court to rule on a question of state law before the lawsuit could proceed.
The federal suit is seeking class certification, which would allow thousands of other Massachusetts smokers to join the lawsuit, which covers people 50 or older who have smoked at least one pack a day of Marlboro cigarettes for at least 20 years. If a jury sides with the smokers, Philip Morris could be required to pay for each patient’s low-dose computed tomography scan, which can detect early-stage lung cancer. The court’s decision was legally significant, but narrowly drawn and currently only directly affects the pending class action lawsuit, the court said.
But Edward L. Sweda Jr., at Northeastern University, said the ruling could open a new avenue of legal action against Big Tobacco.
Tobacco companies could now be facing a “new category, a new track of litigation that they haven’t had to deal with,’’ according to a lawyer with the Tobacco Products Liability Project.
In a statement, Philip Morris said the company wants the case tossed out of federal court in Boston. The company also said other state and federal courts have rejected the legal reasoning embraced by the MA high court.
“We leave for another day consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary, although no symptoms or subclinical changes have occurred,’’ Spina wrote.
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