163 A.3d 91
Del. Super. Ct.2017Background
- Plaintiff Mary Carroll, a long-time Marlboro Lights smoker, sued Philip Morris under the Delaware Consumer Fraud Act (DCFA) and for unjust enrichment alleging the company fraudulently concealed that Marlboro Lights were not safer and were "potentially more dangerous" (due to greater tar mutagenicity) than full-flavored cigarettes.
- Plaintiff sought certification of a Delaware-only class of Marlboro Lights purchasers; proposed alternative class based on Philip Morris’s Marlboro Miles consumer database.
- Key factual premises (assumed for current motions): Marlboro Lights tested lower on FTC/PTC machine yields due to ventilated filters, but actual consumer intake varies by smoking behavior; some evidence (disputed) suggests Lights’ design may increase tar mutagenicity.
- Philip Morris moved for summary judgment arguing federal preemption under the Federal Cigarette Labeling and Advertising Act (Section 5(b)); also opposed class certification, arguing individual issues of causation, injury, damages, and class membership predominate.
- Court assumed plaintiff’s factual theory for preemption inquiry, denied summary judgment (found DCFA claims rest on a general duty not to deceive), and denied class certification because individual issues (causation and fact of injury) predominate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal preemption under Labeling Act §5(b) | Carroll: DCFA is a general duty not to deceive and is not a "requirement or prohibition based on smoking and health" so not preempted | Philip Morris: Claims alleging concealment tied to advertising/promotion are preempted under Cipollone/Good | Denied summary judgment; DCFA claims not preempted because they rest on a general duty not to deceive (predicate-duty analysis) |
| Class certification — predominance (causation) | Carroll: Class-wide inference of causation is supportable (logical inference + Dr. Goldberg: Lights would not have been marketed if truth disclosed) | Philip Morris: Reasons for brand choice vary; surveys and testimony show many chose Lights for reasons other than health; causation requires individual proof | Denied certification — individual issues of causation predominate; no reliable class-wide inference |
| Class certification — predominance (fact of injury/out-of-pocket loss) | Carroll: Out-of-pocket loss is provable class-wide because Lights were valueless if more dangerous; Dr. Goldberg offers common proof of loss | Philip Morris: "Potential" increased harm is not actual injury; whether a given smoker suffered increased risk depends on individualized facts (tar intake, behavior) | Denied certification — fact-of-injury requires individualized proof; product not shown class-wide valueless |
| Motion to strike expert (Dr. Goldberg) | Carroll: Goldberg's market/consumer-opinion analysis supports class-wide causation and loss | Philip Morris: Challenges admissibility and reliability of Goldberg's opinions | Motion to strike held moot by denial of class certification; admissibility left for any future individual proceedings |
Key Cases Cited
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (establishes §5(b) "predicate duty" test: compare state-law duty to federal "requirements or prohibitions based on smoking and health")
- Altria Group, Inc. v. Good, 555 U.S. 70 (2008) (adopts Cipollone predicate-duty framework and holds state-law fraud claims can survive §5(b) preemption when they impose a general duty not to deceive)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (interprets §5(b) preemption of state regulations that directly target cigarette advertising and promotion)
- In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) (discusses circumstances where causation and predominance may be suitable for class adjudication in product cases)
- McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) (refuses to permit class-wide reliance/causation inference in consumer tobacco fraud cases involving variable individual motivations)