SALEM, Ore. - (Mealey's) The Oregon Court of Appeals has reinstated a putative class of Marlboro Light cigarette smokers who say they suffered an economic loss because the cigarettes were no safer than regular Marlboros, saying June 19 that the trial judge erred in rejecting the superiority of class handling (Marilyn C. Pearson, et al. v. Philip Morris, Inc., et al., No. A137297 Ore. App.).
(Opinion available. Document #04-130717-001Z.)
Because plaintiffs complain of allegedly misleading claims for light cigarettes they must prove reliance, the court said, but added that this can be done on a classwide basis pursuant to Strawn v. Farmers Ins. Co. (350 Or 336, 258 P3d 1119, adh'd to 13 on recons, 350 Or 521, 256 P3d 100 (2011), cert den, ___ US ___, 132 S Ct 1142 ).
"At the outset, we note that a person is able to establish causation if the person relied on defendant's representations regarding Marlboro Lights when purchasing even one package of Marlboro Lights," the majority said. "The fact that a person may have relied on the representations initially, but later stopped, is relevant to the amount of the person's damages, but not to liability. Thus, whether the question of causation can be litigated based on evidence common to the class depends on the likelihood that there is a substantial number of class members who never relied on defendant's representations that Marlboro Lights were 'Lights' and had 'Lowered Tar & Nicotine.'
"The uniform nature of defendant's representations, defendant's design and extensive marketing of the cigarettes, and studies and surveys that indicate that many persons who smoked light cigarettes believed that they were safer than regular cigarettes convince us that defendant's representations were a substantial factor in the vast majority of the putative class members' purchases of at least one pack of Marlboro Lights."
"Defendant engaged in extensive marketing, supported by sophisticated psychological and behavioral research, to induce reliance by consumers on their representations that Marlboro Lights were light and would deliver less tar and nicotine," the majority said. "Defendant's marketing was targeted at people who were concerned about their health and, therefore, would buy light cigarettes because they thought that the light cigarettes would deliver less tar and nicotine than regular cigarettes and, consequently, would be healthier or make it easier to quit smoking."
Although a trial court's determination of superiority is reviewed for abuse of discretion, the majority said, because Multnomah County Circuit Court Judge Janice R. Wilson's decision was based on legal conclusions, they are reviewed for legal error. For the same reason, the majority said, it remanded for a new exercise of the trial judge's discretion rather than directing an outcome.
The majority opinion is by Judge Rex Armstrong, with Judges Robert Wollheim, Darleen Ortega, Timothy J. Sercombe, Lynn R. Nakamoto and James C. Egan concurring. Judge Rebecca A. Duncan filed a partially dissenting opinion with Chief Judge Rick Haselton and Judges David Schuman and Erika L. Hadlock concurring.
The dissenters said they agreed with Judge Wilson's determination to deny certification but agreed with the majority that the decision "was based on the erroneous conclusion that none of the three elements of plaintiffs' claims could be litigated on a class-wide basis." The dissenters agreed that reversal and remand is required for the trial court to reconsider.
The plaintiffs are represented by Scott A. Shorr of Stoll, Stoll, Berne, Lokting & Schlachter and Charles S. Tauman, both in Portland, Ore. Philip Morris is represented by William F. Gary and Sharon A. Rudnick and Harrang Long Gary Rudnick in Portland.
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