Jump to full article: Kansas City (MO) Star, 2007-04-24
Author: DAN MARGOLIES LEGAL AFFAIRS
Intro: A federal judge has dealt a crippling blow to a tobacco case that sought damages not for personal injuries but for misleading advertising under the Kansas Consumer Protection Act.
In denying plaintiff Tammy Brown's motion to certify the case against Philip Morris USA as a class action, U.S. Magistrate Judge James P. O'Hara ruled that the act requires proof that each would-be class member relied on the company's alleged misrepresentations.
Brown had argued that such an interpretation of the statute would effectively gut its class-action provision. O'Hara said that, while he was sensitive to that concern, the language of the statute "requires individual showings of reliance, even if the result is very few class certifications in misrepresentation cases."
"If the statute is in need of revision (and it goes without saying that nobody has suggested that K.S.A. Section 50-634 presents a model of good drafting)," he wrote, "the task constitutionally must be performed by Kansas legislators, not a federal judge." . . .
Given its own amply documented history of dishonesty about the dangers of cigarette smoking, it was more than a little ironic that Philip Morris argued that Brown's convictions for dishonest acts called into question her ability to act as an honest class representative.
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