Philip Morris Hit With $4.9M Judgment In Mass. False Ad Trial - Law360

In Donovan v. Philip Morris in a shocking verdict a jury held that Marlboro cigarettes were not a defective product - despite the company's long history of upping nicotine yield.  Now on the same facts the company has been found to have misled consumers.  But after seventeen years of litigation the plaintiffs have been awarded only token damages.  We don't know what the counsel fee award will be but appeal and more litigation await. - gwc

Philip Morris Hit With $4.9M Judgment In Mass. False Ad Trial - Law360

By Brandon Lowrey

Law360, Los Angeles (February 19, 2016, 10:30 PM ET) -- A Massachusetts state judge awarded $4.9 million Friday to a class of nearly 200,000 smokers alleging Philip Morris USA Inc. falsely advertised that Marlboro Lights cigarettes delivered less tar and nicotine to users, saying the tobacco giant's deceptive practices caused consumers to pay too much for the cigarettes.

While Superior Court Judge Edward Leibensperger's judgment places the liability on Philip Morris, it falls far short of the $600 million that the plaintiffs had asked for.

"Philip Morris knew that the implicit health reassurance message (Marlboro Lights are less harmful or safer than Marlboro Reds) conveyed by the descriptors 'Lowered Tar & Nicotine' and 'Lights' was not justified," Judge Leibensperger wrote. "The company did not conduct scientific research in the period of time through the class period to substantiate the implicit claim of 'less harmful' or 'safer' than Marlboro Reds.”

The plaintiffs contended that the "light" cigarettes were no safer than normal ones and that the tobacco company had known that from the start. Philip Morris argued that Marlboro Lights cigarettes do in fact deliver less nicotine and tar, and contain slightly less tobacco.

During closing arguments in the monthlong bench trial in November in Boston, plaintiffs' attorney Thomas V. Urmy Jr. of Shapiro Haber & Urmy LLP pointed to a 1966 internal document in which the company speculated that if it could create "a medically and governmentally endorsed 'healthy' cigarette that tasted exactly like a Marlboro, delivered the nicotine of a Marlboro and was called Marlboro, it would probably become the best-selling brand."

"That was prophetic, because that's exactly what they did," he said.

The class includes 197,000 Massachusetts consumers who bought Marlboro Lights between 1994 and 1998. The plaintiffs' proposed "benefit of the bargain" damages model hinged on whether the Marlboro Lights were safer than the average cigarette or possibly more dangerous.

The lawsuit was brought in 1998 but has gone through a hefty amount of litigation and appeals. The class survived a Massachusetts Supreme Judicial Court challenge to its certification in 2004.