Lawsuit over light cigarettes is allowed
The state's highest court yesterday allowed potentially hundreds of thousands of smokers to mount a class-action lawsuit against
The class-action suit would represent anyone in the state who since 1994 bought Marlboro Lights, which Philip Morris says is the nation's most popular cigarette.
The 4-to-3 ruling by the Supreme Judicial Court overturned a lower court's decision and set the stage for what could become only the second such suit in the nation against manufacturers of so-called light and low tar cigarettes to go to trial, according to specialists in tobacco litigation.
''We conclude that a class action is not only an appropriate method to resolve the plaintiffs' allegations, but, pragmatically, the only method whereby purchasers of Marlboro Lights in Massachusetts can seek redress for the alleged deception," Justice John M. Greaney wrote for the majority.
In response to the decision, Philip Morris USA issued a statement predicting that a jury would reject the suit.
''Philip Morris USA believes that plaintiffs will not be able to prove at trial that there was any deceptive conduct, as required by the Massachusetts statute, or that consumers were actually damaged as a result of the purchases," William S. Ohlemeyer, the company vice president and associate general counsel, said yesterday.
The Massachusetts lawsuit is part of a wave of lawsuits filed recently in at least 11 states alleging that tobacco makers for years had deliberately misled smokers of light cigarettes in violation of state consumer-protection statutes. Last year, in the first such case to go to trial, an Illinois judge issued a $10.1 billion verdict against Philip Morris, concluding that the company had tricked smokers into thinking that Marlboro Lights were better for them than regular Marlboro cigarettes. Philip Morris appealed the verdict, and the Illinois Supreme Court is to hear arguments soon.
Some 20 other light-cigarette class-action suits against tobacco makers are pending around the country, but less than half of them have been certified. The one in Massachusetts is farthest along in the legal process.
A class-action suit allows a group of similarly situated plaintiffs to bring one lawsuit, for potentially large damages, rather than individual lawsuits.
Antismoking activists were elated by yesterday's ruling because courts in other states have often failed to certify light-cigarette lawsuits as class actions, effectively derailing them. Some courts have been unwilling to certify smokers as a class because they are not convinced that all of them were harmed in the same way.
Such suits seek monetary damages by alleging fraud, sidestepping the issue of personal injuries.
''This was a four-three victory, but clearly every plaintiff's position was supported by the majority," said Mark Gottlieb, a senior staff lawyer for the Tobacco Products Liability Project at Northeastern University.
''The big battle in these cases is the certification battle, because the underlying facts in themselves are very damaging for the defendants," he said.
In the late 1990s, internal documents extracted from cigarette companies through lawsuits disclosed that light cigarettes -- marketed since the early 1970s to more health conscious-consumers as less harmful -- often delivered as much tar and nicotine as regular cigarettes or even more, because smokers inhaled more deeply or covered tiny ventilation holes in filters with their fingers to get more flavor. The documents showed that tobacco companies had known this for years.
Although yesterday's ruling is not binding on courts in other states, legal specialists say it may guide courts handling similar cases elsewhere.
Gottlieb, who is not a party to the suit but monitors litigation against the tobacco industry, said he expected the suit to go to trial in Suffolk Superior Court next year.
The suit in Massachusetts was brought by two longtime smokers of Marlboro Lights, Lori Aspinall of Boston and Thomas Geanacopoulos of Ashburnham, who contend that Philip Morris designed Marlboro Lights to generate low readings on smoking machines used by the federal government to measure tar and nicotine while delivering much higher levels to smokers, who smoke differently than machines.
Suffolk Superior Court Judge Robert J. Kane certified the class-action suit in 2001, limiting it to people who bought Marlboro Lights in Massachusetts from 1994 on.
Philip Morris appealed to a justice of the state Appeals Court, Janis M. Berry, who decertified the class-action suit. She agreed with Philip Morris that the potential plaintiffs did not have enough in common because while some Marlboro Light smokers do get more tar and nicotine than the smoking robots used in government tests, it depends on the way they smoke.
But a majority of the SJC said Kane's ruling was ''amply supported by the record."
''The claims of the plaintiffs and members of the purported class [estimated to number in the hundreds of thousands] derive from a common course of conduct on the part of the defendants and present the identical issue -- whether the defendants misrepresented material information concerning the design, function, marketing, toxicity, and tar and nicotine yields of Marlboro Lights" in violation of the consumer protection law, Greaney wrote.
He said further that if the plaintiffs prove that Philip Morris deceived smokers through false advertising, all purchasers of Marlboro Lights will have suffered injuries, even if some did get lower tar and nicotine.
In a dissenting opinion, Justice Robert J. Cordy wrote that it is insufficient for the plaintiffs seeking class certification to show simply that a trade practice is deceptive; the consumer protection law requires that people who buy a product must be injured.
The problem in this case, he wrote, is that even the plaintiffs concede that some smokers ''actually did receive lower levels of tar and nicotine from Marlboro Lights."
''How, then, can a class meet the 'similar injury' requirement when some of its members . . . suffered no injury at all?" Cordy wrote.
Chief Justice Margaret H. Marshall and Justices Francis X. Spina and Martha B. Sosman joined Greaney in the majority opinion. Justices Roderick L. Ireland and Judith A. Cowin joined Cordy in the dissent.
Todd S. Heyman, one of the lawyers for the smokers who brought the complaint, called the ruling a victory for all consumers, not just those who bought Marlboro Lights, because it forbids all manufacturers from engaging in marketing practices that ''have a tendency to deceive a reasonable consumer."
Donald R. Frederico, a Boston lawyer who defends corporations against class-action suits, agreed that the ruling has broad implications, but called it an ''extreme antibusiness decision."
''It puts Massachusetts on a par with states like California that have very expansive consumer protection laws and are therefore, in that respect, inhospitable to business," he said. 