Ohio Judge Denies Cert. in Marlboro Lights Class Action Lawsuit

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U.S. District Judge Sarah Lioi has denied certification to a class action lawsuit filed by cigarette smokers who claim that Philip Morris USA Inc. falsely advertised that Marlboro Lights are healthier than regular cigarettes.

The lead plaintiff, Eva Phillips, filed the Marlboro Lights class action lawsuit in August 2010. The case was originally consolidated with multidistrict litigation proceedings in Maine; however, that court denied certification of the class action and remanded it back to Ohio.

Phillips alleged in her original Marlboro Lights class action lawsuit that Philip Morris advertised Marlboro Light cigarettes as “Light” and as having “Low Tar,” or “Lowered Tar & Nicotine” when, in fact, the cigarettes in question had as much tar and nicotine as Philip Morris’ regular line of cigarettes.

The class action lawsuit claimed that the microscopic holes that Philip Morris claimed exposed the smokers of light cigarettes to less toxins were often unconsciously covered by smokers’ lips and fingers and that Philip Morris did not take into consideration that light cigarette smokers tend to inhale more and more deeply, negating the advertised benefits of Marlboro Lights.

As the proposed Class, Phillips wanted to include “all persons who purchased Marlboro Lights Lowered Tar & Nicotine cigarettes in Ohio for personal consumption from the first date [Philip Morris] placed [its] Marlboro Lights Lowered Tar & Nicotine cigarettes into the stream of Ohio commerce, up to September 23, 2003.” Phillips alleged that the members of this Class all relied to some degree on the advertised health benefits of smoking Marlboro Lights and all suffered economically by purchasing light cigarettes by relying on Philip Morris’ advertising.

Judge Lioi disagreed and refused to certify the proposed Class on Feb. 28. As an initial matter, the judge pointed out that although the state trial court had previously certified the class, the Ohio Supreme Court had overruled that certification. The judge noted “[a] fundamental requirement for class certification is that the plaintiff is able to show that she and the absent class members have suffered the same injury.”

The judge also pointed out that “the record before this Court demonstrates that, for many, the cigarettes perform precisely the way they are warranted to do—delivering less tar and nicotine,” and the “record establishes that smokers did not necessarily rely on [Philip Morris’] representations of lower tar and nicotine in making their purchases.”

The judge continued, “[T]here was no common injury upon the sale of the product,” the judge said,”[t]he potential to realize an injury from the product in this case depends upon the manner in which each consumer used the product and the unique characteristics of each consumer.” The judge concluded, “the class is overly broad as it may impermissibly ‘sweep[] within it a large number of persons who were not injured by [Philip Morris’] conduct[,]’ making class certification inappropriate.”

The other three Marlboro Lights class action lawsuits originally remanded from the multidistrict litigation were in Wisconsin, Hawaii and New York federal courts. As in this case, class certification was denied in the Hawaii and Wisconsin cases, and the New York class action was voluntarily dismissed last year.

Lead plaintiff Eva Phillips is represented by A. Russell Smith of the Law Office of A. Russell Smith and by R. Bryan Nace of the Nace Law Office.

The Marlboro Lights Class Action Lawsuit is Phillips, et al. v. Philip Morris Cos. Inc., Case No. 5:10-cv-01741, in the U.S. District Court for the Northern District of Ohio.