By Sheri Qualters, From The National Law Journal
A Boston federal judge has blocked plaintiffs suing Philip Morris USA Inc. from arguing that the company should have provided electronic cigarettes to consumers as a safer alternative to tobacco cigarettes.
At the same time, the judge has allowed to proceed other key claims in the case against the tobacco company, which dates back to 2006. Plaintiffs are suing to make Philip Morris run a court-supervised program to screen for early-stage lung cancer.
On Friday, U.S. District Judge Denise J. Casper in Boston issued 10 electronic orders in Donovan v. Philip Morris USA. One ruling granted the company’s motion for partial summary judgment and held that “e-cigarettes are not a safer feasible alternative design to Marlboro cigarettes.”
The ruling means that in making their breach of warranty case, plaintiffs cannot argue that e-cigarettes are a “technologically feasible and practical alternative design” to tobacco cigarettes that would have lowered or prevented the plaintiffs’ harm.
Casper’s decision appeared to hinge on the definition of “cigarette.”
“Plaintiffs have neither offered a single generally accepted definition of cigarettes that would include e-cigarettes nor presented a single case in which an e-cigarette was found to be a cigarette.”
Despite the setback, plaintiffs’ lawyers have a strong case that there were other available designs for less carcinogenic cigarettes, said Kevin Peters of Boston’s Arrowood Peters, whose firm is one of four representing plaintiffs in the case.
“We’re optimistic we’re going to be able to demonstrate to a jury that cigarettes don’t need to be as deadly as they are,” Peters said.
The other plaintiffs’ firms are Phillips & Paolicelli of New York, Thornton & Naumes and Todd & Weld of Boston.
The class includes Massachusetts residents who are at least 50 years old and who smoked Marlboro cigarettes for at least 20 so-called pack years, which refers to the number of packs per day multiplied by the number of years the plaintiff smoked. Class members must either be current smokers or have stopped after Dec. 14, 2005. The class does not include individuals who have been diagnosed with lung cancer.
Another Casper ruling will allow the testimony of plaintiffs’ expert David Hammond, who is a psychologist, an associate professor at the University of Waterloo’s School of Public Health and Health Systems and a smoking expert.
Casper wrote that Hammond will testify that “Marlboro cigarettes are unreasonably dangerous, the nicotine in Marlboro cigarettes is powerfully addictive, feasible alternative designs have existed for decades and a rational, non-addicted, fully informed individual presented with a choice between smoking Marlboro cigarettes or a safer alternative design would select the safer alternative.”
Separately, Casper held that Philip Morris could not argue that one of the two representative class member’s smoking was “overwhelmingly unreasonable” in light of medical testing indicating enlarged nodules in her lungs, the death of three siblings from cancer, and medical advice.
“Philip Morris does not point to a single event that occurred before or at the time Ms. [Patricia] Cawley began smoking,” Casper wrote.
The parties previously agreed that no similar defense was applicable against the other class representative, Kathleen Donovan.
Casper also issued a two-pronged decision about the plaintiffs’ Massachusetts Consumer Protection Act claim, which allows triple damages. She held that the multiplication of actual damages is inapplicable to this suit because the plaintiffs are asking for equitable relief, in this case medical testing. But she wants the jury to issue an advisory verdict on that issue and will review it before issuing her own findings and conclusions.
Brian May, a spokesman with Philip Morris’ parent company, Altria Group Inc. of Richmond, said “we are not commenting on the orders issued today.”
The company’s law firms on the case did not respond to requests for comment. They include Arnold & Porter; Latham & Watkins; Mayer Brown; Munger, Tolles & Olson; Shook, Hardy & Bacon; and Weil, Gotshal & Manges.
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