Judge refuses to certify class in Marlboro medical-monitoring suit

A California federal judge has denied class certification to a pair of smokers who argued that Philip Morris USA should establish a medical-monitoring program for long-term consumers of the company's Marlboro-brand cigarettes.

U.S. District Judge William Alsup of the Northern District of California said it is impossible to ascertain whether class members had 20-pack-year histories of smoking Marlboros.

"There is no good way to identify such individuals," the judge said.

"A smoker's rate of cigarette consumption and cigarette brand of choice are liable to change over time, and we cannot expect smokers to recall the cumulative total of Marlboro packs they have smoked," he explained.

A pack-year is calculated by multiplying the number of packs of cigarettes a person has smoked per day by the number of years the person has smoked.

The lawsuit is nearly identical to others being litigated in different states by the same group of attorneys.

It was brought by named plaintiffs Burt Xavier and James Franklin on behalf of asymptomatic individuals with 20-pack year histories of smoking Marlboro cigarettes, as well as recent quitters.

They sought medical monitoring through low-dose CT chest scans that would be provided by Philip Morris through a court-supervised screening program. CT scans can detect lung cancer earlier than X-rays.

They said the tobacco giant should fund such a program because its cigarettes deliver excessive levels of carcinogens and it had the ability to design and manufacture a safer cigarette.

Judge Alsup refused to grant class certification where the class definition fails "to describe a group of people whose membership can be ascertained in a reliable manner." He said the requirement that class members must have smoked Marlboro cigarettes for a minimum of 20-pack-years "nullifies" their bid for class certification.

Such a determination would require each class member to subjectively estimate his or her smoking history, the judge said.

"The question thus would come down to the state of mind of the putative class member, and it would be easy to fade in or out of the class depending on the outcome," he added.

Judge Alsup rejected the plaintiffs' argument that class membership could be determined by other methods such as through records for Philip Morris' customer loyalty program or class member affidavits.

He said Xavier and Burt can proceed with their claims for strict liability design defect and negligent design and testing on an individual basis.

The plaintiffs’ counsel is David Bricker of Waters Kraus Paul in El Segundo, Calif.

Defense attorneys are Tammy Beth Webb, Ina Doung-May Chang and Michael Kevin Underhill of Shook Hardy & Bacon in San Francisco.