Medical monitoring claim turned down

| December 18, 2013

New York’s highest court has ruled that smokers cannot use New   York law to force Philip Morris USA to pay for tests the smokers claim would provide early detection of lung cancer, according to a story by Bob Van Voris for Bloomberg News.

A federal appeals court in Manhattan, applying New York law, had asked the state’s highest court whether it would recognize a cause of action for medical monitoring. The New York Court of Appeals ruled by 4-2 yesterday that the state did not recognize a right to medical monitoring for smokers who weren’t sick.

The suit was filed in 2006 by four smokers seeking court-ordered low-dose computed tomography, or CT, screening tests for Marlboro smokers over the age of 50 throughout the state.

“We believe that the New York Court of Appeals correctly held that there is no basis under the law that supports creating a medical monitoring claim,” said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA. “In so ruling, the New York Court of Appeals has joined with many courts throughout the country in rejecting such a sweeping new cause of action.”

‘In its decision, the court said, “Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence”,’ according to a PM USA note posted on its website.

‘In declining to create a new cause of action, the court expressed serious concerns about the “potential systemic effects of creating a new, full-blown tort law cause of action”. The court concluded that creating a medical monitoring cause of action could result in “effectively flooding the courts” and noted that “there is no framework concerning how such a medical monitoring program would be implemented and administered”.

‘In 2011, a federal district court ruled that there was no legal basis for claims made by plaintiffs in Caronia requesting that the company pay for annual low-dose CT scans for long-term smokers to determine whether they have lung cancer. The trial court dismissed the lawsuit finding that plaintiffs’ claims were legally invalid.’

Chief Judge Jonathan Lippman said in a dissent that the majority of the court “resolutely stands frozen in time”, refusing to grant the smokers an opportunity to claim access to technology that could save lives.

“The common law must evolve with advances in scientific understanding to fashion relief and provide redress for wrongs newly understood, particularly when such relief can prevent devastating disease and death,” Lippman said.

Category: Breaking News

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