The Madison County Record Apr. 12, 2016, 7:30am


ST. LOUIS – Jurors in civil court swiftly cleared Philip Morris of a billion dollar claim that it deceived smokers into buying Marlboro Light cigarettes.

They deliberated 73 minutes, following a class action trial that lasted 33 days.

Plaintiff Deborah Larsen claimed Philip Morris didn’t deliver on a promise that Lights and cigarettes with low tar labels would reduce nicotine and tar.

She represented a class of 400,000 smokers who bought Lights from 1995 to 2003.

The suit started in 2000, amid claims in many courts that smokers compensated for lower nicotine by smoking more cigarettes.

Twelve jurors who heard Larsen’s claim in 2011 deliberated for days without reaching the nine votes Missouri requires for success in civil trials.

The claim didn’t change between trials, but the cast changed.

District Judge Michael David presided at the first trial, and District Judge Steven Ohmer presided at the second.

Stephen Swedlow, of Korein Tillery in St. Louis, represented Larsen at the first.

Mark Bronson and Lauren Bronson, of Newman Bronson and Wallis in Maryland Heights, Mo., represented her at the second.

The Chicago firm of Winston Strawn represented Philip Morris at the first.

Booker Shaw, of Thompson Coburn in St. Louis, represented it at the second.

At the outset, Bronson and Bronson told jurors the trial would show that Lights were more dangerous than Reds.

The trial’s cross examinations chipped away at the theory.

On March 15, former Philip Morris research director William Farone agreed on cross examination that in a 1982 study, Light smokers got 15 milligrams of tar and Red smokers got 21.7 milligrams.

Farone agreed that Light smokers got 1.1 milligrams of nicotine and Red smokers got 1.4 milligrams.

He agreed that Lights had longer filters than Reds, increased ventilation, greater resistance to draw, and less tobacco.

He further agreed that in 1976, Consumer Reports discussed that people who switched from high tar to low tar often took in more tar and nicotine than a smoking machine showed they would.

On March 17, professor David Burns of the University of California at San Diego took the stand for Larsen.

He testified that more likely than not, Lights were more harmful than Reds.

Ohmer, finding he needed a higher degree of certainty, excluded the opinion.

On March 21, American Cancer Society vice president emeritus Michael Thun confirmed on cross examination that he couldn’t quantify a difference in risk between Lights and Reds.

On March 22, University of Chicago professor Michael Dennis confirmed on cross examination that the target population for a valuation survey he conducted was not the same as the population in the class definition.

On March 28, professor Joel Steckel of New York University’s Stern School of Business confirmed on cross examination that he had no idea what smokers would be willing to pay for a Marlboro Light that truly delivered low tar and nicotine.

Steckel said it was correct that he couldn’t testify that the number he came up with was correct for everyone in the class.

“It’s a number that best represents the class as a whole,” Steckel said.

He said it was correct that he couldn’t testify that his numbers were right for any individual in the class, and that it might be true that they weren’t correct for anyone in the class.

He also said he couldn’t prove that the difference in value was due to the terms, lower tar and nicotine.

“I can’t prove causality there either,” Steckel said.

The term “health risks” had different meanings for survey respondents, he said.

“That’s the person’s own individual subjective view,” he said.

On March 29, professor Peter Shields of Georgetown University’s cancer center confirmed on cross examination that three tests on nicotine equivalents between Lights and Reds were statistically significant.

“Yes, showing Marlboro Lights smokers took less from the cigarettes than the regular smokers,” Shields said.

On March 30, he said the danger depends on how people smoke the cigarette.

He confirmed that he couldn’t quantify how much more harmful Lights were.

On April 4, Philip Morris called to the stand Nancy Mathiowetz, professor emerita at the University of Wisconsin at Milwaukee.

She told jurors she was worried about the survey sample.

“There are people excluded,” Mathiowetz said. “There were people screened out from their survey that are members of the class.

“We do not have a sample that is fully representative of the class and therefore does not provide a reliable estimate of injury or damages for the class as a whole.

“We see a questionnaire that has confusing instructions, complex text in the asking of the questions, and we see clear evidence that people raced through this questionnaire.”

For Philip Morris, Shaw moved for directed verdict a day later.

Shaw wrote that Larsen’s experts could not identify studies concluding that compensation was universal and complete for all smokers.

He also wrote that Larsen failed to meet her burden of demonstrating that all class members failed to receive less tar and nicotine, that she did not offer evidence that class members understood Light to mean less harmful and that she didn’t offer evidence of ascertainable loss because Lights always cost the same as Reds.

“The record that has been offered at trial establishes that some class members received less tar and nicotine from each Marlboro Lights cigarette and not all class members received a more harmful cigarette,” Shaw wrote.

Further, Larsen’s failure to offer evidence on any difference in fair market value warranted directed verdict, he wrote.

Shaw also picked apart the survey. He wrote that it did not replicate the marketplace, rather it measured a hypothetical cigarette in an artificial environment. It also measured value in 2010 - and Larsen offered no evidence of market value in the class period from 1995 to 2003.

“Plaintiff’s experts admit that they do not know what percentage of the class were excluded from the survey population,” he wrote.

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