June 24, 2018
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Appellate court upholds rejection of class-action status in smokers’ lawsuit

By Judy Harrison, BDN Staff

BANGOR, Maine — The 1st U.S. Circuit Court of Appeals in Boston has let stand U.S. District Judge John Woodcock’s denial in November of class-action status to a group of people who sued Philip Morris USA over the firm’s marketing practices for light cigarettes.

A three-judge panel of the appellate court, which included Judge Kermit Lipez of Portland, on Feb. 22 declined to hear oral arguments before the litigation has been concluded.

“Even assuming that denial of class certification threatens to end the litigation,” the judges stated in their one-page ruling, “we conclude that the district court’s certification analysis is not sufficiently questionable to warrant interlocutory review.”

Bangor lawyer Samuel W. Lanham Jr. filed one of the country’s first light cigarette lawsuits in August 2005 in federal court in Bangor on behalf of Lori A. Spellman of Levant and Stephanie Good and Allain L. Thibodeau, both of Bangor. Each smoked Marlboro Lights for 15 years or more.

The plaintiffs are not seeking damages for personal injuries or health problems caused by cigarette smoking. Instead, the lawsuit alleges that they were hoodwinked into thinking that “light” cigarettes contained less tar and nicotine than full-flavor cigarettes. The plaintiffs are seeking unspecified compensatory, punitive and other damages for fraud.

At least 20 lawsuits from around the country have been combined in Bangor in what the federal judiciary call multidistrict litigation. Woodcock’s and the 1st Circuit’s decisions apply to every case.

Lanham said Monday that he was disappointed with the decision.

“We’re weighing all options as to our next steps,” he said. “The light cigarette fraud continues to be one of the most serious consumer frauds ever perpetrated on the American public.”

Attorneys could appeal the decision to the U.S. Supreme Court or refile individual lawsuits on behalf of each person who claims to have been tricked into smoking light cigarettes by advertisements that said the cigarettes were lower in tar and nicotine than other regular cigarettes.

A spokesman for the tobacco firm based in Richmond, Va., praised the appellate court’s decision in a press release issued Feb. 22.

“Federal courts have unanimously rejected class-action status in these cases,” Murray Garnick said on behalf of Philip Morris. “It simply is not possible to resolve these claims without determining why an individual smoker decided to purchase ‘light’ cigarettes. There are numerous individual issues that render a class action unsuitable for resolving this type of case.”

Whether the Maine cases go forward or not, the U.S. Department of Justice last week said that tobacco companies should admit in product warnings that they lied about the dangers of smoking light cigarettes and manipulated their products to increase addiction.

The Dow Jones Newswires reported Tuesday  on www.nasdaq.com that the DOJ had released a series of strong statements about the danger of cigarette smoking it wants tobacco companies to include in warning labels.

“We manipulated cigarettes to make them more addictive,” one proposed statement reads, according to Dow Jones’ report. Another suggestion was: “We control nicotine delivery to create and sustain smokers’ addiction, because that’s how we keep customers coming back.”

What impact, if any, the call for such admissions on cigarette packages might have on the lawsuit pending in federal court in Bangor is uncertain, according to Lanham.

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