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Price v. Philip Morris12/15/2005
Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d 81, 88 (2002) (recognizing state policy against extending consumer disclosure requirements beyond those mandated by federal law), PMUSA attempted to rebut plaintiffs' argument that the lack of trade regulation rules governing the use of these descriptors meant that their use could not have been "specifically authorized" by the FTC.
Plaintiffs' argument on this point was that the FTC had not specifically authorized PMUSA to use the terms "lights" or "lowered tar and nicotine" and, "in fact, lacks the authority to do so."
The circuit court took the matter under advisement. Between that date and November 8, 2002, the date upon which the circuit court issued its order, plaintiffs filed their first amended complaint. In the first amended complaint, plaintiffs abandoned some of the claims that defendants had argued were preempted. The remaining complaint, according to plaintiffs, was that defendant's use of the terms "lights" and "lowered tar and nicotine" was an affirmative misrepresentation and, thus, according to Cipollone, not preempted by the Act.
The circuit court's order noted PMUSA's argument that this claim of affirmative misrepresentation necessarily depends on plaintiffs' proving neutralization of the warning and a fraud on the FTC and acknowledged that "to the extent that their claims do depend on such a showing," such claims would be preempted under Cipollone and Buckman. However, the circuit court reserved judgment on the preemption question, finding it premature to address these defenses because there were "significant disputes about several material facts" that could not be resolved without live testimony. "A trial," according to the circuit court, would be required before the court could decide, "on a full and complete record whether the plaintiffs have stayed within the bounds of Cipollone and whether they are attempting to cross the line laid down in Buckman."
The November 8, 2002, order did not address PMUSA's affirmative defense based on the exemption provision contained in section 10b(1) of the Consumer Fraud Act. The order did not, however, reject this defense. Thus, when the circuit court "specifically reserve judgment until trial on the issues presented in defendants' motion for summary judgment," judgment on this defense was reserved, presumably in order for the circuit court to determine, at trial, whether the FTC had specifically authorized the use of the disputed terms.
4. Trial
At trial, plaintiffs' case in chief consisted of the testimony of the 2 class representatives, 4 other class members, and 12 expert witnesses. PMUSA presented the testimony of 18 class members (one of the class representatives, 3 of the originally named plaintiffs who had withdrawn, and 14 others) and 7 experts. On rebuttal, plaintiffs recalled 2 of their experts and offered 2 additional experts.
Little of the testimony presented by plaintiffs in their case in chief was directed at PMUSA's affirmative defenses for the obvious reason that the burden of proving these defenses rested with the defendant. For purposes of resolving the issue that this court finds dispositive, only the testimony of two expert witnesses is relevant.
Plaintiffs' expert witness Dr. Neil Benowitz holds an M.D. from the University of Rochester and is board certified in internal medicine, clinical pharmacology, and medical toxicology. He is a full professor on the faculty of the University of California at San Francisco, where he is chief of the clinical pharmacology division in the department of medicine. In addition to teaching and seeing patients, Dr. Benowitz does research involving the actions o
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