Smokers' suit not class action
COLUMBUS, Ohio -- Two Ohio smokers cannot bring a class-action lawsuit against Philip Morris USA Inc. over the way the tobacco giant marketed "light" cigarettes, the Ohio Supreme Court ruled Wednesday.
The smokers had argued that Richmond, Va.-based Philip Morris knew cigarettes it marketed as having less tar and nicotine would be as dangerous as regular cigarettes.
The tobacco company, which is a unit of Altria Group Inc., contended that Ohio law requires a more specific warning from the state on a company's marketing practices before allowing lawsuits to apply beyond individuals to an entire class.
In a divided decision, the high court ruled that Philip Morris would have had to act in a way "previously declared to be deceptive" under Ohio law when pitching its light cigarettes -- and the smokers failed to demonstrate the company had. Powerful lobbyists for manufacturers and other Ohio businesses had fought a lower court's decision allowing a class action suit, which they saw as possibly opening business sectors other than tobacco to future litigation.
Writing for the majority, Justice Evelyn Lundberg Stratton said the court's ruling should not be interpreted as ruling on the underlying question of whether Philip Morris acted to "deliberately deceive consumers into believing that Marlboro Lights and Virginia Slims Lights are safer or healthier than other cigarettes" -- only on whether the smokers were eligible for class-action status.
She noted that smokers may be able to pursue their case -- which has already been tied up in court for years -- under another section of Ohio law, but not under the state's consumer protection law.
In a strongly worded dissent, Justice Paul Pfeifer attacked the majority's "unconscionably narrow reading" of Ohio law, saying it "has effectively immunized companies from class-action lawsuits by the people they deceive." He said past case law, though it regarded consumer products other than cigarettes, should apply in this case.
"If PMI (Philip Morris) acted as alleged, it knew that it was being deceptive and it knew that another company, albeit in a different business, had been found liable for a similar deceptive and unconscionable practice," Pfeifer wrote.
Charles R. Saxbe, an attorney for the smokers, said the damages allowed under the consumer protection law are more generous than other sections of Ohio law.
Deceptive conduct by a business should be enough reason to compensate consumers, he said.
"The unfortunate thing about this decision is that it raises the bar impossibly," Saxbe said.
A decision has not been made on whether to appeal the ruling, he said.
In a statement, Philip Morris USA president William S. Ohlemeyer praised the court.
"Today's decision is a sensible one that reflects the intent of the state's consumer protection law," he said.
Last year, the Illinois Supreme Court threw out a $10.1 billion fraud judgment against Philip Morris in a class-action lawsuit involving "light" cigarettes. That court found the Federal Trade Commission allowed companies to characterize their cigarettes as "light" and "low tar," and as a result, Philip Morris could not be held liable under state law even if the terms they used could be found false or misleading.
A case is also pending before the U.S. Supreme Court, which said last month it will decide whether Philip Morris must pay nearly $80 million in damages to the family of a longtime smoker, a case that could shield companies from large jury awards if the company wins.
The Ohio cases on behalf of two different smokers originally stemmed from actions filed by buyers of cigarettes marked "light" in Medina, Ashland, Cuyahoga, Lorain, Summit and Wayne counties.
Elsewhere Wednesday, cigarette makers asked a federal judge in Boston to dismiss a lawsuit by a group seeking to recover at least $60 billion spent by Medicare on smoking-related illnesses.
United Seniors Association Inc., a Virginia-based lobbying group for senior citizens, sued six tobacco companies last year, claiming they should be held liable for Medicare's expenditures to treat illnesses such as lung cancer and emphysema.
Murray Garnick, an attorney for Philip Morris, which was one of the companies sued, said similar claims made in three other lawsuits have been dismissed by federal courts in other states.
