Miles (Price) Press Coverage

Miles (Price) v Philip Morris

PRNewswire, February 14, 2001

 Judge Nicholas G. Byron, by court order filed February 8, 2001, certified a class action suit brought on behalf of Cambridge Lights and Marlboro Lights cigarette smokers in the Third Judicial Circuit Court for Madison County, Illinois. The suit alleges that Philip Morris engaged in deceptive conduct in connection with the promotion and sale of these so-called “light” cigarettes. The Court explains that the “gist of plaintiffs’ claims is that these light cigarettes are by nature of their design not significantly lighter than regular cigarettes and that any person who purchased defendants’ light cigarettes did not get what the defendants purported to sell; i.e. a ‘light’ cigarette containing significantly lower tar and nicotine than regular cigarettes.”

The complaint accuses Philip Morris of misleading consumers by packaging cigarettes as “Lights” and claiming that these cigarettes contain “lower tar and nicotine than regular cigarettes.” The complaint states that Philip Morris failed to disclose certain material information regarding their claims of low tar and nicotine in their “light” cigarettes. In particular, the complaint states that Philip Morris failed to disclose that the so-called low tar and nicotine content in their “light” cigarettes depends more upon the existence of additional ventilation holes in the filter of the cigarette than the actual content of the cigarette tobacco. In theory, the vent holes allow air to mix with the cigarette smoke inhaled by the consumer and thereby dilute the tar and nicotine content of smoke per puff. Defendants rely on tar and nicotine measurements obtained from industry “smoking machines” to designate their ventilated cigarettes as “light”.

As the complaint explains, however, the vent holes are placed on the filter and are virtually invisible. As a result, consumers — unlike the industry smoking machines — block the vent holes with their lips and fingers, thereby receiving more tar and nicotine than the machines. The complaint states that Philip Morris failed to disclose that consumers could not achieve the lower tar or nicotine in “light” cigarettes if they inadvertently blocked some or all of the vent holes with their lips or fingers.

Plaintiff and the Class, which includes all residents of Illinois who purchased and consumed Cambridge Lights and Marlboro Lights cigarettes, seek economic damages in the form of a refund of purchase costs. The Class as defined does not include smokers who have claims for personal injury resulting from the purchase or consumption of cigarettes. In fact, the Court specifically held that, “the consumer fraud claims brought by plaintiffs are distinct from any personal injury claims relating to the smoking of cigarettes that Class members may have against defendants.” As a result, the Court concludes that “claims for personal injury and/or addiction are not and could not be included in this action and are, therefore, specifically preserved.”

Similar claims have been made against Philip Morris in suits filed in Florida, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, and Tennessee. Similar suits have also been filed against R.J. Reynolds and Brown & Williamson.

March 21, 2003

This class action suit was brought by representative plaintiffs Susan Miles, Linda J. McHatton, Sharon Price, and Michael Fruth against Philip Morris on February 10, 2000. Lights fraud The class was defined as, “All persons who purchased and consumed Defendant’s Cambridge Lights and Marlboro Lights cigarettes in Illinois for personal consumption… but who do not have a claim for personal injury resulting from the purchase or consumption of cigarettes between the first date the Defendant placed its Cambridge Lights and Marlboro Lights cigarettes into the stream of commerce through the date the Court certifies this suit as a class action.” The plaintiffs alleged that the defendant’s light cigarettes did not contain significantly less tar and nicotine than regular cigarettes, as they claimed. Any person buying light cigarettes did not get what the defendants advertised. The defendant intentionally manipulated the design of the cigarettes to maximize nicotine delivery while at the same time produce lower machine-measured levels of tar and nicotine. The plaintiffs claimed violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and the Uniform Deceptive Trade Practices Act. The plaintiffs sought damages limited to the purchase price of certain light cigarettes.

The defendant argued statute of limitations, laches, waiver, impermissible claim splitting, federal preemption, primary jurisdiction of the FTC, compliance with government regulations, First Amendment, Illinois Constitution Article I Sectons 4 and 5, no safer feasible alternative design, failure to mitigate, assumption of risk, common knowledge, information in the public domain, inappropriate retroactive application of the law, inherent characteristic, state of the art, res judicata, Master Settlement Agreement release, comparative fault, and lack of standing to sue. In regard to the punitive damages claim, it argued the claim was barred as excessive fine as violation of Due Process and Equal Protection causes, fails to provide jury with adequate standards, was unconstitutional, was barred without rights accorded to criminal defendants, was barred as violation of United States and Illinois Constitutions, and was barred as speculative.

The case was heard in the Circuit Court, Third Judical Circuit, Madison County, Illinois (No. 00 L 0112), before the Honorable Nicholas G. Byron. The judge certified the class (2001 WL 34366710) on February 1, 2001. He ruled that the determination of causation could be made without finding why each smoker chose light cigarettes. He determined that any damages awarded could be placed in an administrative fund and claims for individual damages could be processed without individual trials. Because the claims in the case were for the purchase price of light cigarettes, any personal injury or addiction claims were not included and were specifically preserved.

The trial was held between January 21, 2003 and March 6, 2003. On March 21, 2003, the judge rendered a judgment for the plaintiffs in a bench trial. He revisited and reaffirmed his certification of the class. He then held that the tar in Marlboro Lights and Cambridge Lights was higher in toxic substances, so the “lowered tar” statements were fraudlent without some indication that the quantity delivered was more harmful. The defendant knew the harmful effects of their products, but engaged in a strategy to create doubt without actually denying the allegations. It marketed light cigarettes intending to communicate that they were safer than regular cigarettes. This representation was a causative factor in why the class used that brand of cigarettes. Public Health statements suggesting low-tar cigarettes if a person could not quit outright did not excuse the fraud. The defendant was aware of and counted on compensatory smoking behaviors when they designed their cigarettes. It had done research that showed ventilated cigarettes such as its light brands were more mutagenic than non-ventilated cigarettes. The judge denied all of the defendant’s affirmative defenses.

The Federal Cigarette Labeling and Advertising Act (FCLAA) did not preempt the claim, because it was not based on a failure to warn, but a general duty not to deceive. The FTC did not have exclusive jurisdiction on the case since it was not premised on the use of the FTC’s test, but on the false claims made in the advertisements. The judge awarded the plaintiffs $7.1005 billion in compensatory damages (including $2.1 billion in interest), and $3 billion in punitive damages to be paid to the state of Illinois. The judge also awarded the plaintiffs $1.775 billion in attorney fees. The entry of judgment was stayed for 30 days.

Febrary 26, 2011

A lawsuit that led to a $10.1 billion Madison County Circuit Court verdict against tobacco giant Philip Morris — once thought dead after the Illinois Supreme Court overturned it — has been revived by a lower appeals court. In a ruling Thursday, the 5th District Illinois Court of Appeals cleared the way for the plaintiffs, represented by St. Louis class-action lawyer Stephen Tillery, to argue that a favorable U.S. Supreme Court decision in an unrelated case may be applied to reinstate his case. Now, the case will likely return to Madison County, where Circuit Judge Nicholas Byron in 2003 ordered the massive damages to smokers in a civil trial over whether Philip Morris violated an Illinois statute in marketing “light” and “low tar” cigarettes as safer. Byron has since retired.

The case quickly became part of Madison County lore. Business groups protested the county as a so-called “plaintiffs’ paradise.” Interest on the county’s investment of the bond Philip Morris had to post during its appeal helped buy and refurbish a building to house the criminal courts. Tillery and other lawyers stood to collect $1.8 billion in attorney’s fees. William Schroeder, a law professor at Southern Illinois University Carbondale, predicted Friday that the court battles on it will go on “forever and ever.”

“This brings the case back from the dead, but it has a long way to go,” Schroeder said. Philip Morris can appeal Thursday’s order to the Illinois Supreme Court. The company said in a statement on Friday that it will continue to fight.

Schroeder said Tillery can move to reinstate the $10.1 billion judgment in Madison County — but that it may require more litigation on the legal merits of the case.

“I see a mess happening,” Schroeder said. “To me, finality is important in the legal process.” The immediate issue was whether Tillery met a statute of limitations to press his issue. A three-judge panel of appellate judges, sitting in Mount Vernon, Ill., decided that he did.

“The court’s decision … was based solely on a procedural question around a timing issue and not the merits of the plaintiffs’ request to reopen this closed case,” said Murray Garnick, a lawyer speaking on behalf of Philip Morris USA. He added: “This case ended in 2005 when the Illinois Supreme Court reversed the damages award against Philip Morris USA. Since that time, the plaintiffs have made multiple unsuccessful attempts to reopen the case. We believe that the plaintiffs’ latest attempt is equally without merit.”

The Illinois Supreme Court had found that the descriptive terms for the cigarettes were permitted by the Federal Trade Commission and thus did not break state law. The U.S. Supreme Court refused to accept the plaintiffs’ appeal. More recently, Tillery argued that a U.S. Supreme Court decision in 2008 should apply, since it rejected what he called an “identical” Philip Morris defense in a similar case in Maine. Tillery said in a written statement on Friday that his firm is “eager to return to the courtroom to seek the justice our clients deserve.”

October 3, 2011

“Billion-dollar tobacco suit back in court”

UPI– A $10.1 billion lawsuit against cigarette-maker Philip Morris is headed back to court after the Illinois Supreme Court declined an appeal by the company. The lawsuit that produced an initial $10.1 billion judgment will go back to Madison County Circuit Court after the state Supreme Court declined Wednesday to hear the company’s appeal of a lower-court ruling that revived the litigation, the St. Louis Post-Dispatch reported. In 2003 a circuit court judge awarded $10.1 billion in compensatory and punitive damages after a two-month trial of a class-action lawsuit on behalf of Illinois smokers who claimed Philip Morris deceived consumers when it advertised that certain of its cigarette brands were “light” and contained “lowered tar and nicotine.”

The Illinois Supreme Court reversed the judgment in 2005, finding that the company’s use of the terms of “light, low or reduced” to describe cigarettes was authorized by the Federal Trade Commission. But in 2008 the U.S. Supreme Court ruled that the FTC didn’t authorize use of those terms. In February the 5th District Appellate Court sent the case back to the circuit court for “further proceedings,” a ruling appealed by Philip Morris, now Altria Group Inc. In a one-sentence ruling the state Supreme Court declined to hear the company’s appeal.

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