N.H. SC decertifies 'light' cigarette class while Ill. court weighs similar case

John O'Brien Aug. 22, 2012, 10:17am


CONCORD, N.H. (Legal Newsline) - Another state supreme court has rejected a class action lawsuit that claims tobacco companies misled customers by labeling some cigarettes as "light."

The New Hampshire Supreme Court on Tuesday overturned a lower court order that gave class certification to a group of plaintiffs who have purchased Marlboro Lights since 1995. In May, the Minnesota Supreme Court ruled consumer protection claims against Philip Morris were barred by a 1998 settlement between the tobacco industry and the State.

Philip Morris said Minnesota was the 14th court out of 15 to reject the light cigarette claims.

Plaintiffs argued that Philip Morris falsely represented that light cigarettes would deliver less tar and nicotine than other cigarettes. The company said there were varying questions of law and fact that faced individual members of the proposed class, and therefore certification was inappropriate.

"Philip Morris contends that individual inquiries will be necessary to determine the extent of each class member's knowledge about the 'compensation' phenomenon - that is, the tendency of smokers of light cigarettes to inhale more deeply, hold the smoke in their lungs longer, or cover up the ventilation holes in the cigarette paper or filter, in order to receive the same amount of tar and nicotine as when smoking Regulars," Chief Justice Linda Stewart Dalianis wrote.

"Because of the likelihood that numerous class members were exposed to information about the compensation phenomenon, individual inquiries will predominate, Philip Morris argues, and, therefore, class certification is improper.

"By certifying the class, the trial court appears to have concluded both that class members could establish lack of knowledge by relying upon common evidence, and that common issues about lack of knowledge would predominate. We agree with Philip Morris that this was error."

Joining Dalianis in the majority were justices Gary Hicks and Carol Ann Conboy.

St. Louis attorney Stephen Tillery was one of the attorneys representing the plaintiffs. On the same day the New Hampshire decision was released, Tillery was arguing in Illinois to have a $10.1 billion award reinstated.

Madison County Circuit Judge Dennis Ruth heard arguments Tuesday on Tillery's petition seeking relief from the dismissal of the verdict. Ruth declined to issue an immediate ruling.

The $10.1 billion award was ordered by former Madison County Judge Nicholas Byron in 2003. It included $1.8 billion in attorneys fees.

The state Supreme Court overturned the award in 2005, and Byron dismissed the case in 2006. Two years later, Tillery sought relief from the dismissal.

Philip Morris moved to dismiss the petition under the statute of limitations, as well as for failing to allege a basis for relief.

Ruth, who had inherited the case from Byron when he retired, ruled in favor of the tobacco company, saying that the statute of limitations to file the petition had expired.

Tillery appealed and like Ruth, the Fifth District Appellate Court determined that the statute of limitations applied and did not address the tobacco company's claim that the plaintiffs failed to allege a basis for relief.

The appeals panel remanded the case back to Ruth on the question of facts.

Philip Morris appealed to the state Supreme Court, which refused to disturb the appellate court ruling last September.

From Legal Newsline: Reach John O'Brien at jobrienwv@gmail.com.

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