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Price v. Philip Morris12/15/2005
l allegations contained in plaintiffs' second amended complaint are:
"7. At all relevant times, Defendant sold and packaged Cambridge Lights and Marlboro Lights as `light' and as having decreased tar and nicotine.
8. While marketing and promoting decreased tar and nicotine deliveries, Defendant designed Cambridge Lights and Marlboro Lights cigarettes to register lower levels of tar and nicotine to the `Cambridge' or `Ogg' testing apparatus-the testing machine used by the tobacco industry to `measure' tar and nicotine levels in cigarettes-than would be delivered to the consumers of the product. Defendant controlled the tar and nicotine delivery of Cambridge Lights and Marlboro Lights under machine testing conditions to achieve apparent support for their representations that their Cambridge Lights and Marlboro Lights cigarettes are `light' and contain decreased tar and nicotine and that their Marlboro Lights cigarettes contain `lowered tar and nicotine.'
9. Defendant's representation that Cambridge Lights and Marlboro Lights cigarettes are lower in tar and nicotine than regular cigarettes is deceptive and misleading.
10. Not only do consumers receive higher levels of tar and nicotine than the testing apparatus registers, the smoke produced by Cambridge Lights and Marlboro Lights is more mutagenic (causing genetic and chromosomal damage) per milligram of tar than `regular' cigarettes."
Plaintiffs' second amended complaint further alleged the following "deceptive and unlawful conduct" by PMUSA in connection with its "manufacture, distribution, and marketing and sale of Cambridge Lights and Marlboro Lights cigarettes":
"a. falsely and/or misleadingly representing that their product is `light' and/or delivers lowered tar and nicotine in comparison to regular cigarettes;
b. describing the product as light when the so-called lowered tar and nicotine deliveries depended on deceptive changes in cigarette design and composition that dilute the tar and nicotine content of smoke per puff as measured by the industry standard testing apparatus, but not when used by the consumer.
c. intentionally manipulating the design and content of Cambridge Lights and Marlboro Lights cigarettes in order to maximize nicotine delivery while falsely and/or deceptively claiming lowered tar and nicotine. These manipulations include, but are not limited to, the modification of tobacco blend, weight, rod length, and circumference; the use of reconstituted tobacco sheets and/or expanded tobacco; and the increase of smoke pH levels by chemical processing and additives, such as ammonia, which resulted in the delivery of greater amounts of tar and nicotine when smoked under actual conditions than Defendant represented by use of the `light' description;
d. employing techniques that purportedly reduce machine-measured levels of tar and nicotine in Cambridge Lights and Marlboro Lights cigarettes, while actually increasing the harmful biological effects, including mutagenicity (genetic and chromosomal damage) caused by the tar ingested by the consumer per milligram of nicotine."
In answer to the second amended complaint, PMUSA continued to assert the same 27 affirmative defenses.
2. Class Certification and Class Representatives
On September 8, 2000, plaintiffs moved for class certification pursuant to section 2-801 of the Code of Civil Procedure (735 ILCS 5/2-801 (West 1998)). A hearing on plaintiffs' motion for class certification was held on November 28, 2000, with a supplemental hearing on January 12, 2001.
On February 8, 2001, the circuit court granted plaintiffs' motion to cert
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