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Price v. Philip Morris12/15/2005
, perhaps upon making the first purchases of a light cigarette, we question whether it can reasonably be said that the words "light" and "lowered tar and nicotine" actually deceived over a million people for decades.
The circuit court cited Leonardi v. Loyola University of Chicago , 168 Ill. 2d 83 (1995), for the proposition that " person is liable for his or her conduct whether it contributed wholly or partly to the plaintiffs' injury as long as it was one of the proximate causes of the injury." Leonardi, however, was a medical malpractice action in which the question was whether the defendant hospital and physicians could admit evidence of the alleged negligence of another physician who was not a party to the suit to demonstrate lack of proximate cause. Leonardi, 168 Ill. 2d at 91. Unlike Leonardi, the present case does not involve the apportionment of causation among multiple tortfeasors. The question is not whether PMUSA's use of the descriptors was "one of the proximate causes" of plaintiff's injury. Again, the question is whether it can reasonably be said that deception created by the presence of the words "Lights" and "lowered tar and nicotine" on packages of Marlboro Lights and Cambridge Lights was the "but for" cause of millions of purchasing decisions made over a period of some 30 years by the 1.14 million members of the plaintiff class.
We question, for example, whether all or most of the young people who began smoking long after these products were brought to market were deceived by the disputed words when choosing these brands of cigarettes. It may be just as likely that peer group pressure was the proximate cause of their adopting Marlboro Lights as their preferred brand. Similarly, there is no way of knowing how many smokers first tried Marlboro Lights because they were deceived by the promised lower level of tar, then tried one or more other brands, only to return to Marlboro Lights as a matter of personal preference.
Second, a great deal of evidence was presented on the phenomenon of compensation , which is the term applied to the tendency of smokers to change their smoking behavior after switching to a lower tar and nicotine product in order to achieve the level of nicotine delivery that they had become accustomed to. The circuit court concluded, based on the testimony of plaintiffs' experts, that plaintiffs demonstrated that compensation is "complete." That is, that every smoker compensates fully for the effects of the lowered tar and nicotine cigarette. However, even if this is true with respect to smokers of full-flavor cigarettes who switch to the so-called "light" or "low tar" brands, we question whether the members of the class who never smoked prior to smoking Marlboro Lights would have felt the need to compensate when they lacked a prior habit to compensate for.
In addition to our reservations about the existence of individual issues that might make class certification inappropriate, we have grave reservations about the novel approach to the calculation of damages that was offered by the plaintiffs and accepted by the circuit court.
However, despite the importance of these questions and the parties' having thoroughly briefed and argued them, we decline to address them. Because we have resolved this appeal on the threshold question of a statutory bar to maintaining the action, these are issues for another day.
V. CONCLUSION
Plaintiffs note that the FTC has never adopted a trade regulation rule approving the use of descriptors such as "light" or "low tar," and that the FTC has never stated that the use of such descriptors has been "substantiated" by any cigarette manufacturer. Further, plaintiffs argue th
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