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Sitting List: LORI ASPINALL & another vs. PHILIP MORRIS, INC. & another 

Thursday, January 10th 2008, 9:00 AM - Courtroom One, Second Floor, John Adams Courthouse, One Pemberton Square, Boston Presiding: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, Botsford, JJ. . . .

SJC-09981 LORI ASPINALL & another vs. PHILIP MORRIS, INC. & another

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• LORI ASPINALL & another vs. PHILIP MORRIS, INC. & another 

FUTURE CALENDAR Thursday, January 10th 2008, 9:00 AM Presiding: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, Botsford, JJ. Courtroom One, Second Floor, John Adams Courthouse, One Pemberton Square, Boston

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• U.S. COURT OF APPEALS FOR THE FIRST CIRCUIT REVERSES THE DISMISSAL OF A LIGHT CIGARETTE LAWSUIT FROM MAINE;  

The U.S. Court of Appeals for the First Circuit on August 31 issued a comprehensive, 68-page ruling (pdf) that reinstated a consumer protection lawsuit filed in 2005 on behalf of Maine residents who smoked Marlboro Lights or Cambridge Lights manufactured by Philip Morris USA, Inc. The lawsuit contends that Philip Morris, USA Inc., and its parent company, Altria Group, Inc., violated the Maine Unfair Trade Practices Law by engaging in unfair and deceptive acts or practices. Specifically, the plaintiffs allege that the company made affirmative representations that some of its brands are “Light” and that they deliver “Lowered Tar and Nicotine” when in fact they do not do so and the company knew that they do not do so.

The lawsuit, Good, et al. v. Altria Group, Inc., et al., was dismissed on May 25, 2006 by U.S. District Court Judge John A. Woodcock, Jr., who ruled that the Federal Cigarette Labeling and Advertising Act (FCLAA) pre-empts the plaintiffs’ claims.

A similar lawsuit, Aspinall v. Philip Morris, is currently awaiting appeal in Massachusetts on the similar issue of whether the FCLAA pre-empts plaintiffs’ claims based on Mass. General Law Chapter 93A, the consumer protection statute. Massachusetts, like Maine, is in the First Circuit. The Aspinall appeal is to be heard by the Massachusetts Supreme Judicial Court . . .

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP) at Northeastern University School of Law in Boston, was delighted with the First Circuit’s ruling. “This decision revitalizes litigation brought on behalf of victims of Philip Morris’ light cigarette scam. The Good case now goes back to the federal district court in Maine, while the chances of a dismissal of the Aspinall case in Massachusetts are now extremely remote,” Sweda said.

Mark Gottlieb, Director of TPLP, noted that "the series of industry defenses in "light" cases stemming from the assertion that the U.S. Federal Trade Commission somehow regulated the term "Lights" and "Lowered Tar and Nicotine" are now collapsing as seen in the U.S. Supreme Court's unanimous decision in Watson and now here. The reason for this collapse is that the notion that the FTC regulated the marketing of these products without ever issuing a regulation is utterly false. The Illinois Supreme Court, which managed to get this completely wrong on scant evidence, should be embarrassed for having reversed the multi-billion verdict in the only "light" class action to go to trail so far."

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• Bid to shift tobacco cases to US courts denied  

In a major blow to tobacco companies, the US Supreme Court yesterday denied tobacco giant Philip Morris' s request to shift all smokers' lawsuits to federal courts, which generally give greater leeway to corporations and smaller damage awards to those claiming harm from years of exposure to tobacco smoke.

The decision, in a case involving the alleged marketing deception of "light" cigarettes, is expected to affect liability lawsuits against tobacco companies filed in 20 states, including Massachusetts. Some state awards in recent years have been in the billions of dollars, although many of those judgments were later overturned on appeal. . . .

"This is a big loss for the industry," said Edward L. Sweda Jr. , senior attorney for the anti smoking Tobacco Products Liability Project at Northeastern University School of Law in Boston. "If the appeals court ruling had been upheld, it would have basically eliminated state courts as a venue for lawsuits against the tobacco companies."

Sweda said other industries, such as pharmaceutical companies and automakers, could argue that lawsuits against them should move to federal court because of their relationship with federal regulators.

William Ohlemeyer, associate general counsel for Philip Morris, downplayed the Supreme Court's decision as "narrow" and insisted it would not affect the case.

"We have compelling defenses to the Watson claim that have been advanced in state courts," Ohlemeyer said in a statement. . . .

In Massachusetts, a suit filed by Lori Aspinall and Thomas Geanacopoulos in 1998 is now before the state Superior Court. In 2004, the Massachusetts Supreme Judicial Court, in a 4- to -3 decision, allowed smokers to proceed with a class-action suit over the marketing of light cigarettes.

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• MAJOR LITIGATION SETBACKS FOR TOBACCO INDUSTRY IN THE UNITED STATES 

During the last four months, there have been several court decisions that have bolstered the prospects of plaintiffs who have sued tobacco companies.

May 18.  Haglund v. Philip Morris, 847 N.E. 2d 315 (pdf).  The Massachusetts Supreme Judicial Court unanimously rejected the tobacco industry’s blame-the-smoker-for-smoking defense.  This is the first court opinion in the country that has squarely held that, as a matter of law – except in extremely rare and unlikely cases – the so-called “personal choice” defense is unavailable to the tobacco companies.  Thus, a consumer can proceed with a strict liability tobacco lawsuit in Massachusetts even while knowing that there is something wrong with the product. All the consumer has to prove is that it was possible to make a less dangerous product (e.g., one without nicotine, which would not be addictive and hence not smoked in quantities large enough to cause disease), and that the product caused the consumer’s illness.

July 6.  Engle v. Liggett Group, 2006 Fla. LEXIS 1480 (pdf).  The Florida Supreme Court upheld findings that cigarette manufacturers were negligent, committed fraud and fraudulent concealment and that their products are defective, unreasonably dangerous, addictive, and the cause of 16 major diseases.  . . .

July 21.  Arnitz v. Philip Morris, 933 So. 2d 693 (pdf).  See http://tobacco.neu.edu/litigation/cases/pressreleases/Arnitz.htm  The Court of Appeal of Florida, Second District upheld a plaintiff verdict, ruling that a plaintiff is allowed to raise the issue of comparative negligence as a tactical matter in the absence of the tobacco company defendant’s pleading of comparative negligence as an affirmative defense.  This permits juries to rule for plaintiffs even if the jurors also think (as they often do) that the plaintiffs were also at fault.

August 9.  Aspinall v. Philip Morris.  A Massachusetts Superior Court judge rejected Philip Morris’ motion for summary judgment in a “light” cigarette class action.  The judge rejects the argument that the Federal Cigarette Labeling Act preempts the plaintiffs’ claims and disagreed with the Illinois Supreme Court’s majority opinion in Price v. Philip Morris on the question of whether the Federal Trade Commission’s use of consent orders constitutes “specific authorization” of industry conduct by a federal agency, thus shielding the industry from liability under state consumer protection statutes. . . .

August 22.  Thompson v. Brown & Williamson Tobacco Co.  The Missouri Court of Appeals, Western District upheld a plaintiff verdict and rejected all appellate arguments made by the tobacco company defendants, including the contention that Congress has preempted state law claims, that “common knowledge” of the dangers of smoking obviated the defendants’ duty to warn in a negligence claim and that a defendant can withdraw an affirmative defense of comparative negligence and prevent the plaintiff from seeking a comparative fault instruction, even when the evidence presented at trial supported such an instruction. . . .

Regarding tobacco litigation, certain tobacco-friendly stock analysts have focused virtually exclusively on whether and when Altria will spin off Kraft Foods and have disregarded or downplayed legal developments that have gone against tobacco’s interests.  . . .

The latest proof that these companies have not transformed themselves into responsible corporate citizens – as they have claimed as part of a multi-million-dollar public relations campaign -- came on August 31 when the tobacco company defendants moved to have Judge Kessler not apply her ban on false descriptors such as “light” and ‘Low Tar” and her requirement of corrective statements to sales outside the United States.  As the Washington Post in its September 5 editorial (“Big Tobacco, Lawless As Ever,”) put it: “If we can’t continue to defraud Americans into killing themselves, they effectively asked, can we at least keep suggesting to billions of people abroad that some cigarettes are safer than others?”

In light of these pro-plaintiff legal developments, the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute based at Northeastern University School of Law in Boston, plans to conduct a litigation conference in February 2007 in Miami, Florida.

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More firms ban smoking anywhere on site 

To help cut skyrocketing medical costs, companies nationwide are creating smoking bans so tough that smokers need to go all the way off company property for a puff.

Some companies are banning all tobacco use on every square inch of corporate property -- from the parking lots to the doorways where smokers routinely huddle.

Military insurer USAA is the latest to enact such a ban, including cigarettes and chewing tobacco, on its 500-acre Phoenix campus.

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SCHWARTZ/LORBER: State High Court Ruling Departs From Tort Principles In Consumer Protection Cases [Item not online] 

The Supreme Court of Judicial Appeals of Massachusetts recently stretched the Massachusetts Consumer Protection Act (MCPA) to new and unchartered boundaries of extreme liability. Mass. Gen. Laws ch. 93A, Sec. 9(1). The Court eviscerated the tort law fundamentals of a basis of liability, proof of causation and damages in order to allow a deceptive advertising lawsuit to proceed as a class action against tobacco companies.

Sometimes, extreme rulings such as this are considered "tobacco law" and are not applied to other defendants. The Court's decision-making in this case, though, could apply to other industries, especially if they are the "unpopular" ones of the day. . . .

Conclusion.

Lawmakers in Massachusetts should consider clarifying the MCPA and show that the slim majority of the Supreme Court of Massachusetts misconstrued the will of the Legislature. Courts in other states should disavow and reject the decision in construing their own consumer protection acts. Placing unchartered and unsound liability on any industry and creating incentives for frivolous, expensive litigation is fundamentally unsound public policy.

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Lawsuit pouring water on 'light' cigarettes 

Philadelphia attorney Stephen Sheller won an important victory in Boston this month in his fight against the tobacco industry's marketing of "light" cigarettes.

Sheller, who helped to spearhead light cigarette litigation against the tobacco industry nationwide, is involved in a light cigarette case against Philip Morris Cos. -- the maker of Marlboro Lights -- seeking class-action status in Massachusetts. . . .

Sheller, a partner in the Philadelphia law firm of Sheller Ludwig & Badey, said the Massachusetts ruling is especially significant because it is the first time a state supreme court has ruled on the issue and because the Massachusetts supreme court is so well-respected.

He also says the ruling is important because it is another step in getting the tobacco industry to stop trying to convince consumers that light cigarettes are less harmful than regular cigarettes.

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Philip Morris suit expands 

The Massachusetts Supreme Judicial Court in a 4-3 decision on Friday overturned the ruling of a state Appeals Court and decreed that smokers of Marlboro Light cigarettes in the state can proceed with a class action suit against Philip Morris based on the claim that the tobacco giant duped them into believing that the light cigarettes were less harmful than regular cigarettes. . . .

The case is similar to the one pending before the Illinois Supreme Court, that of Price v Philip Morris USA, which was decided last year in favor of the plaintiffs by Madison County Judge Nicholas Byron who issued a $10.1 billion judgment against the tobacco firm. In a similar argument, Philip Morris appealed to the Illinois Supreme Court asking for decertification of the class.

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Massachusetts Court Reverses 'Lights' Ruling; Philip Morris USA 

Today, the Massachusetts Supreme Judicial Court reinstated a "lights" class action, ruling that Massachusetts' Consumer Protection laws require the trial court to allow the case to proceed as a class action but noting that the class certification "may be revisited" at a later time. The ruling is limited to Massachusetts.

The decision came in the Aspinall case, which was initially certified as a class action by a Massachusetts trial court on October 11, 2001 but decertified by a judge of the state's intermediate appellate court. In Aspinall, plaintiffs seek only to recover for economic loss, and not personal injuries.

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UPDATE: Mass. Reinstates Class-Action For Suit Vs. Altria ($$) 

"We were surprised by this ruling since the tobacco industry has been quite successful defending certification of class actions," Smith Barney analyst Bonnie Herzog wrote in a research note Friday.

One lights case, however, has gone to trial as a class action. In March 2003, an Illinois judge delivered a $10.1 billion verdict against Philip Morris, finding that smokers were misled by the marketing of light cigarettes.

Philip Morris has appealed that verdict to the Illinois Supreme Court. Philip Morris said Friday the Massachusetts decision should have no bearing on the Illinois appeal.

Herzog expects Philip Morris to prevail in the Illinois case, and expects the tobacco industry in general to prevail in such cases.

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Philip Morris Must Face Lawsuit Over Light Cigarettes 

Today's ruling is "consistent with our view that these 'lights' class action cases are unlikely to go away as quickly and as decisively as some market participants believe," wrote Goldman Sachs analyst Judy Hong in a note today. She rates Altria as "in-line." . . .

"The critical question was whether this case was going to be certified" as a class action, said Ed Sweda, a senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston. "We are obviously delighted."

The lawsuits claim that since 1971, Philip Morris has touted Marlboro Lights, the best-selling light cigarette in the U.S., for its "lowered tar and nicotine." . . .

Philip Morris Vice President William Ohlemeyer said the cigarette maker would win at trial because the plaintiffs won't be able to prove any deceptive conduct.

"All the class members bought Marlboro Lights cigarettes that were sold with the same health warnings that are placed on every brand of cigarettes," Ohlemeyer said in a statement.

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• 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 Philip Morris Cos. Inc. contending that the cigarette maker duped them into believing that Marlboro Lights delivered lower tar and nicotine than regular cigarettes.

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.

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• Aspinall v. Philip Morris (SJC Opinion - Aug 13, 2004) 

MASSACHUSETTS' HIGH COURT ISSUES HISTORIC RULING CERTIFYING CONSUMER FRAUD CLASS ACTION AGAINST PHILIP MORRIS FOR MARLBORO "LIGHT" CIGARETTES 

Mark Gottlieb: . . . " . . . . The real battle in these cases is over the issue of class certification. The facts surrounding the deception are hardly in dispute and it is likely that the trial will result in a finding of damages that may reach into the hundreds of millions of dollars, if not more. It is important to remember that this case is not about sick smokers but rather about duped consumers who thought they were getting a lower tar and nicotine cigarette but were in fact getting a cigarette that was as dangerous and addictive, if not more so, than so-called 'full flavor' brands."

Edward L. Sweda, Jr. . . . , added: "Today's ruling is terrific news for the plaintiffs who have filed similar consumer fraud cases against the tobacco companies. While the tobacco industry and their friends on Wall Street may have been surprised by the SJC's decision, it is clear that, as the majority ruled, the '[trial] judge's conclusion that the plaintiffs' claim warrants certification as a consumer class action is amply supported by the record. 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.' Today's decision properly focuses on the fraudulent and deceptive misconduct of Philip Morris, as the plaintiffs allege. This ruling will be very helpful to the attorneys representing the plaintiff class in the Price v. Philip Morris case in Illinois that resulted in a $10.1 billion judgment last year."

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