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Craft v. Phillip Morris Companies8/16/2005
Opinion Vote: AFFIRMED AS MODIFIED.
Cohen, P.J. and Dowd, Jr., J., concur.
Opinion:
Plaintiff cigarette consumers filed this case as a class action to recover damages and other relief under the Merchandising Practices Act (MPA), section 407.025 RSMo (2000), against defendant cigarette manufacturers on claims arising out of defendants' marketing of "light" cigarettes. The trial court entered an order certifying a class under the MPA. After hearing defendants' motion for reconsideration, the trial court entered a new order certifying a class under the MPA, defining the class as follows:
All residents of Missouri who purchased and consumed Defendants' Marlboro Lights cigarettes, in Missouri, at any time between the five years immediately preceding the filing of the Petition in this suit through the date the Court originally certified this suit as a class action (December 31, 2003), but who do not have a claim for personal injury resulting from the purchase or consumption of cigarettes.
Defendants appeal from this order. We strike those portions of the class action certification order that go to the merits of the case and affirm as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
On February 14, 2000, Missouri residents Jackie Bauer and Ed Ratliff (collectively, "plaintiffs") filed a class action petition in the Circuit Court of the City of St. Louis to recover damages and other relief under the MPA and the common law against Philip Morris USA Inc. (PMUSA) (formerly known as Philip Morris Incorporated) and Altria Group, Inc. (formerly known as Philip Morris Companies, Inc.) (collectively, "defendants") on behalf of themselves and Missouri residents who had purchased Marlboro Lights ("Lights").
In their allegations common to all counts, plaintiffs alleged that PMUSA falsely represented that Lights delivered lower tar and nicotine but failed to disclose that Lights contained ventilation holes that diluted the tar and nicotine per puff, as measured by the industry standard testing apparatus; failed to disclose that defendants intentionally manipulated the design and content of Lights in order to maximize nicotine delivery; failed to disclose that the defendants intended to fool the machine tests with these design changes; and failed to disclose that the design changes increased the harmful effects of tar.
Ms. Bauer and Mr. Ratliff alleged that they were longtime consumers of Lights, who were not aware of the misrepresentations until early 2000. Ms. Bauer and Mr. Ratliff sought to represent a class of all Missouri residents who purchased Lights from 1971 until the date of trial who did not have a personal injury claim resulting from the purchase or consumption of cigarettes.
In Count I, plaintiffs sought relief under the MPA. They alleged that they and the proposed class members had entered into transactions with defendants when they purchased Lights and that during these transactions, defendants engaged in unfair or deceptive trade practices by: a) Falsely representing that Lights, when smoked under normal use, contained lower tar and nicotine than regular cigarettes; b) failing to state the material facts that "changes in cigarette design and composition were intended to deliver lowered tar and nicotine levels under machine testing conditions while delivering heightened levels of these compounds when smoked by consumers;" c) "placing vent holes on the filter of light cigarettes that are covered or blocked by the smoker's lips or fingers, under the normal use, thereby negating the represented effects of [Lights];" d) "failing to mark the vent holes or make them visible to the naked eye su
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