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The Telegram
  • NY court rejects smokers’ claim for lung scans

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  • ALBANY (AP) — Longtime heavy smokers with no known lung cancer or other related disease can’t hold tobacco giant Philip Morris USA responsible under state law for their preventive medical scans, New York’s highest court ruled Tuesday.
    The Court of Appeals, divided 4-2, declined to recognize what the majority called a new civil claim for “a threat of future harm” from smokers’ exposure to the carcinogens in cigarettes. The majority said otherwise they’d permit millions of potential plaintiffs to recover monitoring costs, flooding the courts with claims and depleting funds from those who are actually sick.
    “It is speculative, at best, whether asymptomatic plaintiffs will ever contract a disease,” Judge Eugene Pigott Jr. wrote. “A threat of future harm is insufficient to impose a liability against a defendant in a tort context.”
    Judges Victoria Graffeo, Susan Read and Sheila Abdus-Salaam agreed with him.
    The dissenters said it is undisputed the company’s cigarettes are addictive and lethal, while new, low-dose CT scans of the chest help in early detection of lung cancer, creating an opportunity save lives and alleviate suffering.
    “Moreover, the high mortality rate in lung cancer patients is largely due to the latent nature of the disease, whose symptoms typically manifest only after the cancer has metastasized, at which point survival rates are in the single digits,” Chief Judge Jonathan Lippman wrote. He added that the fear of overwhelming frivolous claims is unfounded since they could be limited by setting thresholds for people with enhanced risk of disease who are 50 and older and smoked the equivalent of one pack of Marlboro cigarettes daily for 20 years.
    Judge Jenny Rivera agreed with Lippman. Judge Robert Smith didn’t participate in the ruling.
    The court was asked the answer that question under New York law by a federal appeals court, which had already dismissed the smokers’ other liability claims against Philip Morris.
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