ORDER ON PHILIP MORRIS USA, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS FOR LACK OF CAUSATION
In this multi-district litigation, Philip Morris USA, Inc. (PM) moves for summary judgment against six plaintiffs on the ground that because they continued to purchase light cigarettes after learning the truth about them health risks, as a matter of law, they cannot show that PM’s misrepresentations caused them to buy light cigarettes. 1 The Court concludes that whether these plaintiffs relied on PM’s misrepresentations is a factual question and denies PM’s motion.
I. STATEMENT OF FACTS
The Plaintiffs assert state consumer fraud and unjust enrichment claims, alleg
On March 29, 2010, PM moved for summary judgment against these six Plaintiffs.
PM’s Mot, for Summ. J. on Pls.’ Claims for Lack of Causation
(Docket # 183)
(PM’s Mot.).
On May 3, 2010, the Plain
II. DISCUSSION
A. The Parties’ Positions
1. PM
PM makes a three-part argument for why as a matter of law the Plaintiffs’ continued purchases of light cigarettes preclude their claims. First, PM asserts that because causation is an element of the Plaintiffs’ state causes of action, they must show they relied on PM’s misrepresentations.
PM’s Mot.
at 3-6 (summarizing how causation is an element of each state cause of action at issue). PM separately argues that Mr. Tyrer does not have standing to be a class representative because the California UCL and FAL require class representatives to show “actual reliance on the allegedly deceptive or misleading statements.”
Id.
at 5 (quoting
In re Tobacco II Cases,
Second, PM describes how courts recognize “that a plaintiff cannot establish the required causal link between the alleged misrepresentation or concealment and their injuries where they continued to purchase the product even after learning the ‘truth.’ ”
Id.
at 7-9 (citing cases where courts found that continued use barred recovery). In a similar light cigarettes action, PM emphasizes how the Second Circuit found that the continued purchases of light cigarettes “indicated that the plaintiffs had other reasons to purchase light cigarettes independent of the alleged deception.”
Id.
at 9 (citing
McLaughlin v. Am. Tobacco Co.,
Third, PM concludes that these principles preclude the Plaintiffs’ claims because deposition testimony establishes that all six Plaintiffs “continued to choose to purchase and smoke light cigarettes after filing their lawsuits and after learning the ‘truth’ about light cigarettes.” PM’s Mot. at 9-11. Because the Plaintiffs “would have purchased light cigarettes even if there had been no alleged misrepresentations or concealment,” PM concludes that each “plaintiff cannot show that he or she suffered injuries as a result of the alleged misconduct.” Id. at 3.
Although acknowledging at oral argument that reliance is generally a question of fact, PM asserted that “on the record before the court” the issue is “ripe for summary judgment.” Oral Arg. Tr. 26:24-27:3. Because it “put before the court evidence of an admission by conduct,” PM asserts that “the plaintiff has to do more than rest on its pleading” to avoid PM’s motion for summary judgment. Id. 29:5-10. Instead, PM describes the statements by the Plaintiffs as “self-serving, conclusory testimony” that are “essentially no better than resting on the pleadings.” Id. 29:9-11. Because the Plaintiffs’ “admission by conduct ... is absolutely unrebutted,” PM contends that summary judgment is appropriate. Id. 39:13.
PM asserts that the Plaintiffs’ alleged addiction to nicotine does not change this outcome.
PM’s Reply
at 5. Because the Plaintiffs “seek [ ] recovery ... based on their decision to purchase
a particular brand
— a light cigarette,” PM argues that they cannot “invoke their alleged addiction to ‘cigarettes in general, or the nicotine therein’ to avoid the need to prove causation.”
Id.
at 5-6 (quoting
Pls.’ Resp.
at 3). PM proposes that the Plaintiffs’ continued smoking of light cigarettes undermines
Finally, PM distinguishes its causation argument from its separate voluntary payment doctrine affirmative defense.
Id.
at 1-2. Describing the voluntary payment doctrine as “barr[ing] recovery of payments voluntarily made with full knowledge of the facts,” PM contends that the doctrine forecloses liability for those “purchases made by plaintiffs after they knew the alleged ‘truth.’”
Id.
at 2 (quoting
Dupler v. Costco Wholesale Corp.,
2. The Plaintiffs
The Plaintiffs respond that their continued purchases of light cigarettes do not bar their claims as a matter of law. The Plaintiffs contend that public policy considerations should prevent PM from benefiting from the Plaintiffs’ addiction.
Pis.’ Resp.
at 3-4 (citing cases where courts found public policy prevented a litigant from benefiting from a problem it created). Because PM “successfully addicted these Plaintiffs to cigarettes by lying about how healthy Light cigarettes are,” the Plaintiffs assert that the Court cannot now let PM avoid liability “by virtue of the fact that Plaintiffs cannot stop smoking.”
Id.
at 3. The Plaintiffs conclude that because no safer cigarette exists, it “is absurd” to require the Plaintiffs to switch brands to preserve their claims.
Id.
Rather, PM’s continued-use defense, according to the Plaintiffs, is a veiled attempt to invoke the voluntary payment doctrine against its intended purpose of leveling “the playing field between litigants.”
Id.
at 4-8 (citing cases not recognizing or restricting the doctrine to avoid violating its purpose). The Plaintiffs argue that not only do some of their states not recognize the defense,
id.
at 4, but also that their addiction prevents their continued use from violating the doctrine, which only “bars recovery of payments voluntarily made with full knowledge of the facts.”
Id.
(quoting
Dupler,
Furthermore, the Plaintiffs argue that PM is “wrong that the laws of the various states at issue require a showing of reliance and causation that would be negated by Plaintiffs’ continued use of light cigarettes.”
Id.
at 2. Instead, the Plaintiffs posit that because causation is not an element of unjust enrichment, the Plaintiffs need not show reliance to state a claim.
Id.
at 8-10 (citing unjust enrichment cases from Maine, Pennsylvania, and Tennessee). Although they concede that Mr. Tyrer must show reliance to establish standing to assert a California UCL claim, the Plaintiffs emphasize that he need not show that PM’s alleged misrepresentations were the “sole
or even predominant or decisive factor
influencing his conduct.”
Id.
at 10-11 (emphasis added by Plaintiffs) (quoting
In re Tobacco II Cases,
B. Summary Judgment
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also Thompson v. Cocar-Cola Co.,
C. Reliance and the Continued Purchase of Light Cigarettes 8
Once plaintiffs allege reliance, whether they actually relied is generally a question for the fact finder.
Alliance Mortgage Co. v. Rothwell,
Despite this admission, PM insists that the record before the Court makes summary judgment appropriate as to these specific Plaintiffs. Oral Arg. Tr. 27:1-3. PM contends that “the record here is an admission by conduct that is absolutely unrebutted. The plaintiff did not come forward with any evidence other than self-serving, conclusory testimony.” Id. 39:9-15. PM’s argument has two parts. First, by continuing to smoke light cigarettes after learning about the health risks, the Plaintiffs’ actions raise the inference that they did not rely on PM’s misrepresentations. Id. Second, because the Plaintiffs’ deposition statements are “essentially no better than resting on the pleadings,” the Plaintiffs have provided no evidence to rebut the inference raised by their continued purchases. Id. 29:2-14. Put simply, PM contends that the Plaintiffs’ actions speak louder than their words.
Taking these arguments in inverse order, the Court does not agree that the testimony in the Plaintiffs’ depositions is so self-serving and conclusory that it should be disregarded for summary judgment purposes. Federal Rule of Civil Procedure 56(e) obligates a party to do more than “rely merely on allegations or denials in its own pleading[s]” to oppose a summary judgment motion. Fed.R.Civ.P. 56(e)(2). Testimony and affidavits that “merely reiterate allegations made in the complaint, without providing specific factual information made on the basis of personal knowledge,” are insufficient to meet this requirement.
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
PM’s “admission by conduct” argument fares no better. PM argues that when plaintiffs continue “to purchase the product with knowledge of the truth,” courts carve out an exception to the general rule that reliance is a factual question. PM’s Mot. at 7-9 (citing cases from a variety of jurisdictions). Applying this exception here, PM claims that the Plaintiffs’ continued purchases of light cigarettes indicate that they “had other reasons to purchase light cigarettes independent of the alleged deception” that preclude them as a matter of law from proving causation. Id.
Although PM identifies cases that have precluded plaintiffs’ claims based on continued use of a product, these cases are distinguishable. First, the majority addresses the issue in a different procedural context. Some found that the continued use by some plaintiffs defeats class certification.
McLaughlin,
Others decided the issue at a later stage in the proceedings.
Price v. Philip Morris, Inc.,
Regardless whether the plaintiffs in Prohias could not or did not allege a plausible reason for their continued purchases, the six Plaintiffs in this case have: they assert that they have continued to purchase light cigarettes because they are addicted to them. See, e.g., Haubrich Dep. Tr. 117:21-22. Such testimony prevents the Court from concluding that as a matter of law the Plaintiffs received the benefit of their bargain.
PM responds that because the Plaintiffs could have switched to other brands of cigarettes, their continued smoking of light cigarettes suggests non-health related reasons for their purchases.
PM’s Reply
at 6-7. However, as PM conceded at oral argument, reliance on the misrepresentations need only be a “substantial factor,” not the only factor.
See In re Tobacco II Cases,
Whether the Plaintiffs’ continued purchases of light cigarettes will undermine their ability at trial to prove reliance on PM’s alleged misrepresentations is a question of fact.
See Benedict v. Altria Group, Inc.,
III. CONCLUSION
The Court DENIES Philip Morris USA, Inc.’s Motion for Summary Judgment on Plaintiffs’ Claims for Lack of Causation (Docket # 183).
Notes
. PM’s motion is directed against the claims of Plaintiff’s Stephanie Good, Lori Spellman, Allain Thibodeau, Carol Corse, Melanie Haubrich, and Miles Tyrer.
. The Corse and Haubrich Complaints do not appear as regular docket entries. Instead, they are docketed under their related case numbers and included in the MDL docket via the transfer order. MDL Transfer Order (Docket #1).
. Ms. Good, Ms. Spellman, and Mr. Thibodeau sue for unjust enrichment and under the Maine Unfair Trade Practices Act, 5 M.R.SA. § 205-A et seq. (MUTPA). Good Compl. ¶ 2. Ms. Corse sues for unjust enrichment in Tennessee. Corse Compl. ¶ 16. Ms. Haubrich sues for unjust enrichment in Pennsylvania. Haubrich Compl. ¶ 3. Mr. Tyrer sues under California's Unfair Competition Law, California Business and Professions Code, §§ 17200 et seq. (UCL), False Advertising Law, California Business and Professions Code, §§ 17500 et seq. (FAL), and Consumers Legal Remedies Act, Cal. Civil Code, §§ 1750 et seq. (CLRA). Tyrer Compl. ¶ 4.
. Ms. Good’s testimony does not assert her reliance as clearly as the five other Plaintiffs. On examination by PM, Ms. Good testified that she thinks that by smoking Marlboro Lights she is at less of a risk of getting disease, Good Dep. Tr. 71:7-15, and that she thought Marlboro Lights were "healthier” than full flavor cigarettes when she began smoking. Id. 123:12-17. Later in her deposition, however, she admitted that before and after becoming involved in this suit, she thought all cigarettes were "equally unhealthy.” Id. 73:13-74:1. On examination by her own counsel, Ms. Good stated that PM's branding of Marlboro Lights as lower in tar and nicotine was a “factor” in her decision to smoke light cigarettes. Id. 141:17-142:12. Although Ms. Good’s testimony is somewhat conflicted, it is not directly contradictory and the Court does not distinguish Ms. Good’s testimony from other Plaintiffs.
.At oral argument, PM contested whether the Plaintiffs are in fact addicted to cigarettes.
Tr.
30:6-20 (Docket #231)
(Tr.).
The Plaintiffs testified that they are addicted and at summary judgment, the Court accepts their statements as true.
Iverson v. City of Boston,
. The Plaintiffs do not respond to PM's assertion that the Maine MUTPA implicitly requires a showing of reliance.
. Finally, if the Court should decide to grant the motion as to any one of the class representatives, the Plaintiffs ask the Court "that they be permitted to replace the proposed class representative within sixty days of the Court's order.” Pis.’ Resp. at 15. Because the Court denies the motion, the Court does not reach the issue of substitution.
. Although PM framed its motion in relation to causation, the parties dispute the issue in relation to reliance.
See PM’s Mot.
at 3;
Pis.’ Resp.
at 2. The two terms are related: reliance is one way the Plaintiffs can prove causation.
See Restatement (Second) of Torts
§ 546 (Restatement) (identifying reliance as one way of showing causation);
Bridge v. Phoenix Bond & Indemn. Co.,
. A federal court sitting in diversity applies state law to questions of substantive law.
See Erie R.R. v. Tompkins,
. Because the reason each Plaintiff started purchasing light cigarettes is uniquely within his or her personal knowledge, it is hard to understand what better evidence of this question the Plaintiffs could produce than their own testimony. If as PM urges the testimony of the Plaintiffs on this subject is wholly discounted, the law suits would fail because the Plaintiffs were not allowed to testify about
. The other cases cited by PM are even more inapplicable. Many deal with a formulation of the voluntary payment doctrine.
See, e.g., Solomon, 777
N.Y.S.2d at 56;
Gen. Motors Corp.,
PM cites two other cases,
Oakland Raiders v. Oakland-Alameda County Coliseum, Inc.,
In a final case,
Heindel v. Pfizer,
. The Court is unsure if the district judge in
Prohias
applied this standard. In
Prohias,
the Court’s sole discussion of the standard occurred in a discussion it held with the plaintiffs’ counsel in which the attorney agreed with the Court that if a person took Lipitor
“only
for the purpose of reducing cholesterol,” the person could not recover damages.
. Although addressed separately by the parties, whether Mr. Tyrer has standing is a factual question for the same reasons that causation is a question of fact. Although the UCL and FAL require class representatives to show reliance, the standard is no different than the reliance needed to prove causation.
See In re Tobacco II Cases,