Federal Judge Denies Marlboro Medical Monitoring Class

SAN FRANCISCO - (Mealey's) A California federal judge denied class certification and court-ordered cancer screenings for long-time Marlboro smokers on April 18 and dismissed all claims except design defect and negligent design and testing (Burt Xavier and James Franklin, et al. v. Philip Morris USA Inc., No. 10-02067, N.D. Calif.). 

"Plaintiffs' proposed class definition does not describe a group of people whose membership can be ascertained in a reliable manner," U.S. Judge William Alsup of the Northern District of California said.  "Specifically, the central condition that class members smoked Marlboro cigarettes for at least twenty pack-years nullifies plaintiffs' bid for class certification.  There is no good way to identify such individuals.  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.  

"Thus, while the arithmetic total of an individual's Marlboro-smoking history is an 'objective' question, it remains a question, and its answer depends on each individual's subjective estimate of his or her long-term smoking habit.  Unlike in many cases, there are no defendant records on point to identify class members."  

Plaintiffs may pursue relief individually on the two remaining claims, the judge said.  

Burt Xavier and James Franklin sued Philip Morris in the District Court in May 2010, seeking medical monitoring for a class of asymptomatic California Marlboro cigarette smokers and those who recently quit.  The proposed class consisted of those over age 50 and who had a 20-pack-per-year cigarette smoking history. 

The plaintiffs seek to have Philip Morris provide a court-supervised program offering low-dose CT scans, a technology they claim is new, generally unavailable through insurance and more effective and safer than X-rays. 

The plaintiffs also allege that Philip Morris ignored alternative designs for its cigarettes, produced cigarettes that delivered excessive carcinogens, marketed light cigarettes knowing cigarette smokers would compensate with deeper inhalation and marketed low-tar cigarettes only to later replace them with imposters.  The plaintiffs asserted six claims, including those under the unfair competition law, Business and Professions Code Section 17200, et seq. 

[Editor's Note:  Full coverage will be in the April issue of Mealey's Litigation Report: Tobacco.  In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #04-110420-040Z.  For all of your legal news needs, please visit] 

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