Although another class action tobacco case has been OK’d for trial, we still believe it will be hard to prove Philip Morris misled plaintiffs, or that they suffered common harm.
In a mildly surprising development, Judge Allen Oleisky of the 4th District Court in Minneapolis reversed his ruling earlier this year and recently granted class certification to a lawsuit brought by smokers in Minnesota.
In the case, Curtis v. Philip Morris Cos., smokers argued that Philip Morris misled the public regarding the dangers of smoking “light” cigarettes. In granting the class-action status, Oleisky indicating that in the case of economic claims, all members who purchased “light” cigarettes on the basis of manufacturer’s claims suffered similarly. This is a different standard that is used in personal injury cases.
The judge’s reversal was based on a similar case in Massachusetts in August. In the Aspinall case, the Massachusetts Supreme Judicial Court (SJC) ruled, in a 4-3 decision, that under Massachusetts’ consumer protection laws, individual plaintiffs do not need to show personal harm to allow class-action certification. Other states have such a requirement, making class-action suits difficult to bring.
In the Aspinall case, the Massachusetts Court found that individual harm is hard to measure since smokers have ingested differing unmeasured levels of tar and nicotine. But, the court ruled, this should not preclude common legal action. While Aspinall is expected to go to trial, the plaintiffs are claiming economic loss, not personal injury. As a result, damages, if awarded, are expected to be manageable.
In relying on the Aspinall precedent, Oreisky’s latest decision was based on his interpretation that Minnesota’s consumer protection statutes are written similar to those of Massachusetts.
Common to both suits is the reliance of smokers on Philip Morris’ claims for its product, not personal harm individually suffered.
While we are surprised that both of these dismissed class-action suits have been reinstated, it would seem that proving economic harm and commonality in actual trial will be a tougher hurdle.
