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Craft v. Phillip Morris Companies8/16/2005
that although common facts relating to their conduct exist, individual issues remain that make this case unsuitable for class action certification; that is, the individual consumer's smoking behavior, reasons for purchase, and knowledge. We address each of these claims separately.
a) Smoking Behavior
Defendants first argue that whether or not a consumer actually ingested a higher amount of tar or nicotine depends on how the consumer smoked each cigarette and that this presents an individual issue of proof with respect to each consumer. To determine what evidence may be required, we look at the allegations of the petition. However, we do not consider whether the petition states a cause of action. Further, we do not consider what proof may be required under a cause of action defendant thinks plaintiff should have pleaded. Plaintiff's claim with respect to liability is that she purchased a product designed and manufactured to manipulate test results, resulting in a misrepresented and mislabeled product. Plaintiff's allegations go to the condition and labeling of the product at the time it was sold; they do not make defendant's liability dependent on each consumer's individual smoking behavior.
Plaintiff also alleges that she failed to receive the qualities and economic value of a low tar, low nicotine cigarette. Again, this allegation goes to the condition of the product at the time of the purchase transaction and would require proof that the product did not have the value of a truly low tar and low nicotine cigarette. This allegation does not consider the consumer's manner of use of the product after purchase. As a result, evidence of individual smoking behavior does not predominate over the common questions of liability.
b) Reasons for Purchase
Defendants next argue that if a consumer purchased Lights for reasons unrelated to tar and nicotine, the consumer got what he or she paid for and was not deceived or damaged. They contend that the need to determine which individuals were deceived by the term "light" must be determined on a case-by-case basis. However, plaintiff did not allege reliance or deception in her petition, and she did not base the theory of this lawsuit on reliance or deception. Therefore, under the theory of this lawsuit, the individual reasons for purchase are not issues and do not predominate over the common questions.
c) Knowledge
Defendants last argue that knowledge is a defense under the MPA that would defeat a claim or cut it off at a certain time and that each consumer's knowledge presents an individual predominant question. We disagree that knowledge is a predominant issue.
In the first place, whether or not knowledge is a defense to an MPA claim and to what extent it is a defense are legal questions. If knowledge is not a defense, it will not be an issue in the lawsuit, much less a predominant issue. On the other hand, if knowledge is a defense, it would not necessarily create a predominant individual issue. As a general matter, the fact that an affirmative defense may be available against certain individual class members and affect them differently does not, by itself, show that individual issues predominate. In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 138 (2nd Cir. 2001); 5 M OORE ET AL. , supra, section 23.45 . In American Family , the court held that "the trial court can resolve individual questions, particularly those relating to damages and defenses, after making a determination on the predominant issue." 106 S.W.3d at 489 n.7. If knowledge is a defense under the MPA and serves to cut off a claim, its application would be similar to the application of a statute
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