June 25, 2010 – In a federal class action1 brought by two long-time Marlboro smokers residing in Massachusetts on behalf of a class of an estimated 60,000 similarly situated Massachusetts residents, the Honorable Nancy Gertner has granted class certification, clearing the way for a landmark trial against Philip Morris. The certified class includes Massachusetts residents over the age of fifty, who have smoked at least one pack of Marlboro cigarettes per day for at least twenty years, or the equivalent.

Federal Court Grants Class Certification to Class of Marlboro Smokers for Landmark Trial against Philip Morris

Federal Court in Massachusetts allows a lawsuit brought by class of Marlboro smokers to proceed to trial. The class seeks a medical monitoring program to provide low dose CT scans that can detect lung cancer at an early stage and increase survival rates.

Marlboro smokerBOSTON, Massachusetts, June 25, 2010 – In a federal class action1 brought by two long-time Marlboro smokers residing in Massachusetts on behalf of a class of an estimated 60,000 similarly situated Massachusetts residents, the Honorable Nancy Gertner has granted class certification, clearing the way for a landmark trial against Philip Morris. The certified class includes Massachusetts residents over the age of fifty, who have smoked at least one pack of Marlboro cigarettes per day for at least twenty years, or the equivalent.

Plaintiffs in the class action allege that Philip Morris designed Marlboro cigarettes to contain dramatically more cancer-causing tars than were either necessary or apparent to its customers.

The case is unique in that the plaintiffs are not seeking money damages and they do not have symptoms of lung cancer. Instead, they are seeking a medical monitoring program which would allow lung cancer to be detected while it is more curable. The medical monitoring program would utilize low-dose CT scans (“LDCT”) rather than conventional x-rays.

In its opinion released on June 24, 2010, the Court summarized evidence submitted by the plaintiffs, stating: “Prior technology, such as x-rays, was only able to identify lung cancer when it had reached an advanced stage. LDCT scans, however, can identify lung cancer at a much earlier stage, significantly increasing survival rates from about fifteen percent to eighty-five percent.”

Although not covered by most insurance plans, the use of LDCT scanning to screen for the early detection of lung cancer is endorsed by many leading medical institutions worldwide.

Significantly, the National Cancer Institute recently issued a press release concerning its National Lung Screening Trial (“NLST”), a randomized national trial involving more than 53,000 current and former heavy smokers. The NCI reported that there were 20 percent fewer lung cancer deaths among trial participants screened with LDCT, as compared to those in the control group arm of the study. This supports the plaintiffs’ long-held position that if a medical surveillance program is established, it would have dramatic potential to save human life.

Having achieved the significant milestone of class certification, plaintiffs’ counsel are preparing for a merits trial this summer. Similar class actions are pending in California, New York2, and Florida, where plaintiffs seek to establish surveillance programs for residents of those states.

Plaintiffs in the aforementioned lawsuits are represented by class action attorneys from Levy Konigsberg LLP, a New York-based trial law firm, which has a 25-year history of handling complex personal injury litigation. In addition to its class action litigation team, the firm also has some of the leading birth defect lawyers and mesothelioma lawyers in the nation. The law firms of Thorton & Naumes, LLP, and Todd & Weld, LLP, are serving as co-counsel in the Donovan case.

1 Donovan, et al. v. Philip Morris USA, Inc., No. 06CV12234 (D. Mass);
2 Caronia, et al. v. Philip Morris USA, Inc., No. 06-0224 (E.D.N.Y.).

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