Carroll v. Philip Morris USA, Inc.

• Decision Date: 30 May 2017
• Docket Number: C.A. No. 03C–08–167 AML
• Citation: 163 A.3d 91
• Parties: Mary A. CARROLL and Betty C. Lynn, on behalf of themselves and all others similarly situated, Plaintiffs, v. PHILIP MORRIS USA, INC., a Foreign Corporation, f/k/a Philip Morris Incorporated, Defendant.
• Court: Delaware Superior Court

163 A.3d 91

Mary A. CARROLL and Betty C. Lynn, on behalf of themselves and all others similarly situated, Plaintiffs,

v.PHILIP MORRIS USA, INC., a Foreign Corporation, f/k/a Philip Morris Incorporated, Defendant.

C.A. No. 03C–08–167 AML

Superior Court of Delaware.

Submitted: February 3, 2017

Decided: May 30, 2017

Philip M. Finestrauss, Esquire, PHILIP M. FINESTRAUSS, P.A., Wilmington, Delaware; Stephen R. Fine, Esquire, LAW OFFICES OF STEPHEN R. FINE, Manchester, New Hampshire; Finis E. Williams, III, Esquire, FINIS E. WILLIAMS, III, ESQUIRE, Concord, New Hampshire; Attorneys for Plaintiffs.

Donald E. Reid, Esquire, MORRIS, NICHOLS, ARSHT & TUNNEL, Wilmington, Delaware; John C. Massaro, Esquire and David E. Kouba, Esquire, ARNOLD & PORTER LLP, Washington, DC; Attorneys for Defendant.

OPINION

LeGROW, J.

A long-time smoker of "light" cigarettes seeks to hold the tobacco company that sold the cigarettes liable for economic harm allegedly suffered by the plaintiff and members of a purported class that, if certified, would comprise smokers who purchased "light" cigarettes from the defendant. Confronted with a series of decisions in other jurisdictions denying class certification for similar claims, the plaintiff attempts to distinguish this case on the basis of her allegation that, not only were the cigarettes in question not "safer" than regular cigarettes, they potentially were more harmful due to the mutagenicity of the tar consumers ingested when smoking them.

The following is only the barest of summaries: the plaintiff contends the defendant, Philip Morris USA, Inc. ("Philip Morris"), fraudulently concealed from consumers and public health agencies that the company's popular cigarettes, Marlboro Lights, "potentially" were more dangerous than full-flavored cigarettes. The plaintiff urges the Court to certify a class consisting of Delaware residents who smoked Marlboro Lights. Philip Morris contends class certification is not appropriate in this case because, among other reasons, the class is not ascertainable and individual issues predominate over those susceptible of common proof. Philip Morris also seeks summary judgment in its favor on the basis that federal law expressly preempts the plaintiff's claims. Finally, Philip Morris seeks to strike the expert report and conclusions proffered by the plaintiff's expert, Dr. Marvin Goldberg.

There are two key questions in this case. First, does the plaintiff's allegation that Marlboro Lights potentially were more dangerous than full-flavored cigarettes sufficiently distinguish this case from the numerous cases concluding "lights" claims are not amenable to class certification? Second, does a federal law regulating labeling and advertising for cigarettes preempt the plaintiff's state law claims for consumer fraud? For the reasons that follow, I deny the motion for summary judgment as to preemption because the plaintiff's claims arise from a state law imposing a general duty not to deceive, not a law creating requirements or prohibitions regarding smoking and health. I also deny the motion for class certification because individual issues involving causation and fact of injury predominate over the common issues. Finally, I conclude the motion to strike is moot in light of my ruling on the motion for class certification. My reasoning follows.

FACTUAL AND PROCEDURAL BACKGROUND

The parties vigorously dispute certain of the plaintiff's factual allegations, but none of those factual disputes are material to resolving the three motions pending before the Court.

A. The Development of "Light" or "Low–Yield" Cigarettes

The plaintiff, Mary Carroll,¹ filed this action alleging Philip Morris violated the Delaware Consumer Fraud Act ("DCFA")² and unjustly enriched itself by marketing and selling its Marlboro Light cigarettes. In order to understand Ms. Carroll's claims, and the basis on which she seeks certification of the class, it is necessary to have at least a cursory understanding of the development of the market for "light" or "low-yield" cigarettes.

By the mid-to-late 1950s, concerns were beginning to rise about the health effects of smoking, particularly the ingestion of tar and nicotine. Those concerns reached a crescendo in 1964, when the United States Surgeon General publicly condemned cigarettes, announcing that the death rate among smokers was 70% higher than that among non-smokers.³ Even before the Surgeon General's warning, Philip Morris internally had begun researching and developing a cigarette intended to deliver less tar and nicotine while maintaining a flavor that appealed to consumers.⁴

That research led Philip Morris ultimately to brand and market "Marlboro Lights," which were introduced to consumers in 1971. According to the company's promotional plan, Marlboro Lights were to be marketed to those consumers who were "becoming increasingly aware of tar and nicotine contents in cigarettes and ... [were] searching for [a cigarette] with low tar and nicotine content and full flavor."⁵ Although advertisers were not permitted to represent to consumers that low-yield cigarettes were safer or reduced the health hazards of smoking, the parties agree that, at the time Marlboro Lights were introduced, doctors and public health advocates were advising people to quit smoking or, at a minimum, switch to a low-yield cigarette.⁶

Plaintiff contends that Philip Morris designed Marlboro Lights to test as delivering lower nicotine and tar on the "FTC Method," which was the standard testing machine the industry used to measure tar and nicotine output.⁷ Guidance from the FTC, issued in 1966, permitted advertisers to make statements to consumers regarding the tar and nicotine yields of cigarettes, provided such statements were based on results of the FTC Method.⁸

B. The Health Effects of "Light" or "Low–Yield" Cigarettes

Philip Morris designed Marlboro Lights with an increased number of ventilation holes in the filter, thereby reducing the amount of tar and nicotine that registered on the machine during the FTC Method testing. Plaintiff alleges, with record support, that the amount of tar and nicotine delivered to consumers by a Marlboro Light cigarette often differs from the amount the FTC Method registered because of the variability in individual smokers' behavior. Put differently, Plaintiff argues that, although Marlboro Lights delivered less tar and nicotine in machine testing, the filter on a cigarette is not the exclusive factor in determining how much of those ingredients a smoker actually ingests. There is substantial evidence, which Philip Morris does not dispute, that a consumer can modify, or "compensate" for, a low-yield cigarette in various ways, including covering ventilation holes, inhaling more deeply, or smoking more cigarettes.⁹ This compensation may deliver to the consumer a different level of tar and nicotine than the FTC Method indicated.

Long-term studies of smokers using "light" or "low-yield" cigarettes, including investigations into consumers' compensatory smoking behavior, led the United States Department of Health and Human Services to issue its "Smoking and Tobacco Control Monograph 13" regarding the "Risks Associated with Smoking Cigarettes with Low Machine–Measured Yields of Tar and Nicotine."¹⁰ The report concluded, among other things, that: "Measurements of tar and nicotine yields using the FTC [M]ethod do not offer smokers meaningful information on the amount of tar and nicotine they will receive from a cigarette."¹¹ Consistent with those findings, in 2008 the FTC rescinded its 1966 guidance permitting companies to market cigarettes as "light" or "low-yield" based on the FTC Method. The FTC's guidance precluded companies from including in advertisements any implication that tar or nicotine yields for a cigarette were based on a testing method the FTC endorsed.¹²

Plaintiff also contends that, contrary to the suggestion that Marlboro Lights are less dangerous than full-flavored cigarettes, Marlboro Lights' ventilation system actually increased the potential toxicity of the cigarette, making Marlboro Lights potentially more mutagenic than regular cigarettes.¹³ Plaintiff asserts that Philip Morris knew Marlboro Lights were "potentially more dangerous" than full-flavored cigarettes, but concealed this knowledge for decades from both consumers and public health agencies. Philip Morris vigorously contests this contention, but that factual dispute presently is not before the Court. For purposes of the pending motions, I will assume that Marlboro Lights potentially were more dangerous than full-flavored cigarettes due to the mutagenicity of the tar. Plaintiff also concedes, however, that Marlboro Lights were not more dangerous to all smokers because that question ultimately depends on the amount and type of tar ingested.¹⁴ Thus, Plaintiff uses the phrase "potentially more dangerous."

This is the heart of Plaintiff's case, at least as she frames it for purposes of the pending motions: the purported class suffered an economic injury by purchasing Marlboro Lights, a brand of cigarette they believed was less dangerous but that actually potentially was more dangerous than a full-flavored cigarette brand, and consumers made that purchase because Philip Morris fraudulently concealed the facts regarding the potential increased risk Marlboro Lights posed.

C. The Development of Federal Labeling Requirements

According to Philip Morris, Plaintiff's fraudulent concealment theory must be considered within the framework of federal law regarding cigarette labeling and advertising. The warnings cigarette companies are required to give about their product, and the advertisements they are permitted to publish, became a matter of federal regulation in the mid–1960's, shortly before Marlboro Lights were introduced to the market. The Federal Cigarette Labeling and Advertising Act (the "Labeling Act")¹⁵ established "a comprehensive Federal program to deal with cigarette labeling and advertising...