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Price v. Philip Morris12/15/2005
Slip op. at 75-76 (Karmeier, J., specially concurring, joined by Fitzgerald, J.).
The special concurrence further comments, "When a consumer chooses one product over another in the belief that it will be less harmful to his or her health, only to discover later that it may have been more harmful, the existence of damages might seem self-evident." Slip op. at 76 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). The "self-evident" nature of the damages, however, hardly gives pause to the special concurrence in its quest to prove that plaintiffs failed to establish actual damages.
The special concurrence notes that class representative Sharon Price "continued smoking PMUSA's light cigarettes even after this litigation alerted her to the fact that the cigarettes were not, in fact, any healthier and may actually be more harmful than the regular version of those cigarettes." Slip op. at 77 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). Additionally, the special concurrence notes that " ews that PMUSA's low tar and light representations were illusory" did not deter class representative Michael Fruth "from continuing to smoke, although he testified that he did switch back from lights to regulars." Slip op. at 77 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). From these observations, the special concurrence concludes:
"Whatever valuation the class representatives may have placed on the health component of light cigarettes, that valuation had no observable economic consequences. Neither Price nor Fruth offered any testimony suggesting that switching from regulars to lights resulted in their paying any more for cigarettes than they would have otherwise. There was no price disparity between light cigarettes and their full-flavored counterparts, and there is no indication that the switch from regulars to lights caused them to buy more packages of cigarettes. The price they paid did not go up. The quantity they purchased did not increase. No additional ancillary or incidental costs were identified. Moreover, neither Price nor Fruth complained that the cigarettes were not worth what they paid for them. To the contrary, Price's continued purchase of lights even after being alerted to their lack of health benefits suggests that she was entirely satisfied with the value of what she received for her cigarette-purchasing dollar." Slip op. at 77 (Karmeier, J., specially concurring, joined by Fitzgerald, J.).
Having explained that the class representatives did not sustain damages because they continued to smoke after learning the true nature of light cigarettes, the special concurrence makes a similar argument regarding smokers and class members in general. The special concurrence recognizes that the Knowledge Network Survey respondents placed a "lower subjective value on cigarettes that lacked the health qualities claimed by PMUSA in its marketing of Marlboro Lights and Cambridge Lights." Slip op. at 80 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). However, the special concurrence maintains that real world "consumers would not have paid less to satisfy their tobacco habits had the lights' true properties been known." Slip op. at 80 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). According to the special concurrence, "consumers would not have stopped smoking, for they were addicted, and they could not have bought cigarettes that cost 77.7% less or 92.3% less, for no such cigarettes existed. At most, they would have reverted back to `full-flavored' versions of the cigarettes." Slip op. at 80 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). Since the price of light cigarettes and regular cigarettes w
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