Caronia, et al. v. Philip Morris USA, Inc.

The plaintiffs, smokers over the age of fifty who had smoked a certain number of packs of Marlboro Cigarettes and who were not currently suffering from or actively under investigation for lung cancer, sought the establishment of a medical monitoring program at the expense of Marlboro's manufacturer, Philip Morris USA, Inc. As justification for the medical monitoring program, the plaintiffs alleged that the defendant purposely chose not to manufacture and sell a cigarette with less dangerous levels of "tar," which allegedly put them at risk of developing lung cancer. The defendant argued that the medical monitoring request should be dismissed, among other reasons, because the State of New York had not previously granted such requests where the plaintiffs did not yet exhibit the physical symptoms of an illness, and moreover, because the products it sold did not have a particular defect, as required of successful medical monitoring suits. The Court dismissed the case in favor of the defendant tobacco company. In particular, the Court found that, although a medical monitoring program would have been reasonable to provide to plaintiffs who did not yet exhibit physical symptoms of lung cancer, the plaintiffs did not adequately demonstrate that the conduct of the tobacco company constituted a "substantial factor" in causing them to consume the amount of tar that they did.

Caronia, et al. v. Philip Morris USA, Inc., No. 06-CV-224 (CBA)(SMG) (E.D.N.Y. 2011).

  • United States
  • Jan 13, 2011
  • United States District Court, Eastern District of New York

Parties

Plaintiff

  • Arlene Feldman
  • Linda McAuley
  • Marcia L. Caronia

Defendant Philip Morris USA, Inc.

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Because the plaintiffs concede their knowledge of the dangers of cigarettes, and the Court thinks it irrelevant whether the plaintiffs thought their cigarettes could not be any safer, the Court rejects the argument that Marlboros contained an implied warranty that Philip Morris breached. See Spain, 230 F.3d at 1310–11 (rejecting a materially similar implied warranty claim for the same reason); Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996) (rejecting implied warranty claim brought under Texas law because the dangers of smoking were common knowledge in the community); Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 94 (N.D.N.Y. 2000) (rejecting implied warranty theory of liability under New York law because plaintiffs only alleged that Camel cigarettes were carcinogenic, which is a characteristic shared by all cigarettes, and did not allege that “Camel cigarettes were of inferior quality”); Ark. Carpenters’ Health & Welfare Fund v. Philip Morris, Inc., 75 F. Supp. 2d 936, 945 (E.D. Ark. 1999) (“[I]t is the plaintiff’s claim that a typical cigarette, like all cigarettes, is ‘generally defective.’ This type of allegation cannot state a claim for breach of implied warranty of merchantability.”); cf. Rose v. Am. Tobacco Co., 787 N.Y.S.2d 681 (Sup. Ct., N.Y. Cnty. 2004) (unpublished) (denying summary judgment on the implied warranty claim because of triable issue of fact as to whether plaintiff “expected defendants’ cigarettes were neither addictive nor carcinogenic”)."
"The Court further agrees with Philip Morris that the plaintiffs have not met their pleading burden because the fourth amended complaint contains no allegation that, if Philip Morris had conformed its conduct to the law and designed and marketed a reduced tar cigarette, the plaintiffs would not require the same medical monitoring that they are seeking in this suit. Nowhere have the plaintiffs pleaded that if Philip Morris had marketed and designed the non-defective cigarette they describe, they would not have been exposed to harmful levels of tar. Indeed, they concede that even had Philip Morris not acted tortiously and produced this less dangerous cigarette, the plaintiffs would still have been exposed to highly carcinogenic cigarettes. (4th Am. Compl. 68.) Nowhere have the plaintiffs alleged that if they had smoked what they characterize as a non-defective Marlboro cigarette for twenty pack-years, they would not now require medical monitoring that includes LDCT scans. Indeed, the pleadings concede that, if the plaintiffs had smoked the non-defective Marlboro cigarettes, they would face a risk of developing cancer that is fully half what they now face, which must still greatly exceed the risk facing non-smokers. (Id. 68, 71.) Additionally, although not a part of the pleadings, the affidavits of the plaintiffs’ experts do not support a finding that physicians would not recommend monitoring that includes LDCT scans for individuals who have smoked non-defective Marlboro cigarettes for twenty pack-years. All of the expert affidavits to which the plaintiffs have directed the Court compare the plaintiffs to non-smokers, and even then they do not address the question whether physicians would prescribe LDCT scans for non-smokers (although the answer to that question seems obviously to be no)."