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Marrone v. Phillip Morris9/15/2004
Decision and Journal Entry
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Phillip Morris, Inc., n.k.a. Phillip Morris USA Inc. ("Phillip Morris"), has appealed from a judgment of the Medina County Court of Common Pleas that certified a class in an action against it under the Consumer Sales Practices Act. The Appellees/Cross-Appellants, Catherine Marrone and Greg and Eva Phillips, on behalf of themselves and as representative members of a class of plaintiffs ("the plaintiffs"), cross-appeal from the judgment, challenging the failure of the trial court to certify their fraud claims as a class action. This Court affirms.
I.
The plaintiffs filed this action against Phillip Morris, alleging that Phillip Morris had misrepresented the Virginia Slims Lights and Marlboro Lights ("Light") cigarettes that it sold them. The plaintiffs' allegations focused primarily on the design of the Light cigarettes, including that the tobacco itself was not substantially different from that of regular cigarettes but that tar and nicotine delivery was designed to be reduced primarily through the use of tiny vent holes in the filter. According to the plaintiffs, because the cigarettes were tested on a smoking machine, that smoked at a uniform rate and did not cover the vent holes, the testing confirmed that the cigarettes delivered less tar and nicotine. They further alleged, however, that the machine smoking tests did not accurately measure tar and nicotine levels because, among other things, the machine did not mimic actual smoking conditions. Subsequent studies have revealed that most smokers of Light cigarettes, partly due to inadvertence and partly to compensate for the filter's reduction of tar and nicotine, cover the vent holes in the filter, inhale deeper or more frequently, or smoke more cigarettes. Smokers who "compensate" in either of these ways will not, in fact, inhale less tar and nicotine by smoking Light cigarettes, but might actually receive more.
The essence of the plaintiffs' allegations were that Phillip Morris misrepresented the Light cigarettes as "low tar" and that it failed to disclose to consumers that the tobacco content of the "Light" cigarettes was not significantly different from regular cigarettes and that the delivery of lowered tar and nicotine was dependent on the vent holes in the filters, which must remain uncovered by the smoker's lips and fingers while the cigarettes are smoked.
The plaintiffs alleged that Phillip Morris had represented its Light cigarettes to have an attribute (lowered tar and nicotine) that they did not. They alleged causes of action under the Consumer Sales Practices Act and in common law fraud. The plaintiffs sought damages in the form of a refund of the purchase price of all the Light cigarettes that they had bought from Phillip Morris because they had purchased products that did not, in most cases, deliver lowered tar and nicotine, as Phillip Morris had represented they would.
The plaintiffs moved for class certification of all of their claims. The trial court certified a class on the claims under the Consumer Sales Practices Act but did not certify a class action on the fraud claims. Phillip Morris has appealed the class certification on the Consumer Sales Practices Act claims. The plaintiffs have cross-appealed the trial court's failure to certify their fraud claims as a class action.
II.
Assignment of Error
"THE TRIAL COURT ERRED IN CERTIFYING A CONSUMER SALES PRACTICES ACT ("CSPA") CLASS ACTION."
Phillip Morris contends that the tri
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