MEMORANDUM OPINION AND ORDER
Before the Court is the motion of defendant Philip Morris USA Inc. (“PM USA”) for judgment on the pleadings. (Doc. No. 47.) Plaintiff opposes the motion (Doc. No. 60), and defendant filed a reply. (Doc. No. 62.) Also before the Court is plaintiffs motion for class certification. (Doc. No. 82.) Defendant
I. Background
In this action, plaintiff Eva Marie Phillips
According to the complaint, in the wake of emerging evidence on the dangers of cigarette smoking in the late 1960’s, cigarette manufacturers introduced “light” cigarettes to the public. (Doe. No. 1 at ¶ 5.) PM USA sold its version of light cigarettes in Ohio and throughout the United States under the brand name “Marlboro Lights.” (Id. at ¶ 4.) These light cigarettes promised to deliver less tar and nicotine than full flavored cigarettes, and plaintiff suggests that PM USA was banking on the public believing that this new product represented a safer and healthier smoking option. (Id. at ¶¶ 5-6.) In theory, these lower levels of harmful toxins were possible due, in part, to the microscopic holes in the cigarettes that would allow more tar and nicotine to escape into the air. (Id. at ¶¶ 36-37.)
Following the introduction of light cigarettes, the Tobacco Institute Testing Laboratory (“TITL”) began testing light cigarettes by using the Cambridge Filter System, whereby a machine attempted to mimic the act of smoking light cigarettes. (Doc. No. 1 at ¶¶ 31, 40; Declaration of Peter Valberg, Ph.D., Doc. No. 85-10 at ¶ 20.) This became known as the “FTC Method” because it was adopted by the Federal Trade Commission for testing the claims of manufacturers of light cigarettes. (Doc. Nos. 85-8, 85-9; Doc. No. 85-10 at ¶¶ 20-21.) By the FTC Method, the “inhaled” material was collected and analyzed to determine the amount of tar and nicotine that a smoker was believed to consume. (Doc. No. 1 at ¶ 40.) While the testing apparatus consistently registered lower tar and nicotine levels for light cigarettes than those found in traditional cigarettes, plaintiff suggests that the methodology was flawed because it did not take into account the fact that real smokers often unknowingly cover up the ventilation holes with their fingers and lips. Plaintiff maintains that PM USA was aware of the limitations of this testing method, and intentionally designed its light cigarettes to register artificially favorable testing measurements while in actuality still delivering as much if not more tar and nicotine to its customers. (Id. at ¶¶ 6, 8; Doc. No. 82-1 at 2655.)
Plaintiff further alleges that PM USA designed its light cigarettes in such a way that, even if consumers were able to avoid covering the ventilation holes, they would still be able to receive the same amount of tar and nicotine that they received with traditional cigarettes. Through a phenomenon known as “compensating,” consumers are subconsciously able to increase their tar and nicotine levels by increasing the puff volume or frequency, smoking more cigarettes, and smoking each cigarette longer. (Doe. No. 1 at ¶ 44; Doc. No. 85-10 at ¶¶ 2, 28; Declaration of Janette Greenwood, Ph.D., Doc. No. 85-17 at Section III, ¶ 19.) Plaintiff asserts that PM USA was aware that consumers tended to compensate when they smoked light cigarettes but intentionally withheld this information from the public.
Plaintiffs complaint contained statutory claims under the Consumer Sales Practices Act (“CSPA”), Ohio Rev.Code § 1345.01 et seq., and the Ohio Deceptive Trade Practices Act (“DTPA”), Ohio Rev.Code § 4165.01 et seq. Plaintiff also raised common law claims alleging fraud, express and implied warranty violations, and unjust enrichment. (Doc. No. 1.) In a memorandum opinion and order, dated March 21, 2013, the Court dismissed a portion of plaintiffs CSPA claim, and dismissed plaintiffs DTPA in its entirety. (Doc. No. 44.) By its motion for judgment on the pleadings, PM USA seeks dismissal of the class component of plaintiffs common law fraud and unjust enrichment claims. (See Doc. No. 47.)
Plaintiff does not seek to recover damages for any personal injuries that might have resulted from her use of PM USA’s light cigarettes. (Doc. No. 1 at ¶ 3.) Rather, she limits her economic recovery to recouping the purchase price of the cigarettes, suggesting that she did not receive what she paid for, namely, cigarettes with lower tar and nicotine. Plaintiff believes that PM USA unjustly profited from marketing its cigarettes as offering lower tar and nicotine, without delivering a product that lived up to the advertisements. She asks the Court to order PM USA to refund the purchase price or disgorge all revenue it received through the sale of these cigarettes. She further seeks an injunction to compel PM USA to adequately warn consumers of the dangers of smoking light cigarettes.
Plaintiff brings this action on her own behalf, and on behalf of other similarly situated consumers of PM USA’s light cigarettes.
all persons who purchased [PM USA’s] Marlboro Lights Lowered Tar & Nicotine cigarettes in Ohio for personal consumption from the first date [PM USA] placed [its] Marlboro Lights Lowered Tar & Nicotine cigarettes into the stream of Ohio commerce, up to September 23, 2003.
(Doc. No. 82 at 2644.) PM USA opposes class certification, maintaining that the diversity within the class as to whether, and to what extent, each consumer relied on the representations on the cigarette boxes, and the manner in which each consumer used the product and compensated for the reduced amount of tar and nicotine, renders class certification an ineffective vehicle for resolving the present dispute.
II. Law of the Case
Plaintiff argues that the class certification inquiry is foreclosed by a 2003 state court ruling in the predecessor case certifying a similar class. A review of the procedural history in the predecessor state ease is, therefore, necessary to provide context. The original state court action was filed in the
Relying on Ohio law, plaintiff argues that the law of the case is that the class at issue has already been certified, and that this Court should give full weight and credit to that ruling. While plaintiff acknowledges that the state trial court’s certification order was ultimately overturned by the Ohio Supreme Court, she underscores the fact that this ruling went to the notice requirement of the CSPA, not the Rule 23 technical requirements for class treatment. According to plaintiff, the findings under Ohio Rule 23, a rule similar to its federal counterpart, remain.
There are several reasons why plaintiffs position is unsound. First, the very order plaintiff seeks to enforce was reversed, and the first action was voluntarily dismissed. “A judgment that has been vacated, reversed, or set aside on appeal is thereby deprived of all conclusive effect, both as res judicata and as collateral estoppel.” State v. Lowe, No. 82893,
Second, “any judicial rulings made prior to the [voluntary] dismissal cannot be used to bar a later action on the grounds of res judicata____” Wilson v. Marino,
Also problematic for plaintiff is the fact that the lower state court decisions appear to have been based on a less stringent standard. For example, the state court of appeals required only a solitary common issue for predominance, while federal law would require more than one shared issue. See Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
Finally, it is well settled that review under Fed.R.Civ.P. 23 requires a “rigorous analysis” of the relevant factors. Dukes,
III. Class Certification Under Fed. R.Civ.P. 23
A. Federal Procedural Law Governs
The Court turns to the merits of plaintiffs class certification motion. Plaintiff relies on Ohio’s Rule 23 to support her request for class certification. However, federal courts must apply Federal Rule of Civil Procedure 23 when determining whether to certify a claim — even a claim arising under state law. In re Welding Fume Prods. Liab. Lit.,
B. Standard of Review
To obtain class certification under federal law, the plaintiff must show that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). “The Rule’s four requirements — numerosity, commonality, typicality, and adequate representation— effectively limit the class claims to those fairly encompassed by the named plaintiffs claims.” Dukes,
In addition to fulfilling the prerequisites of Rule 23(a), the proposed class must also meet at least one of the three requirements listed in Rule 23(b). Plaintiff attempts to establish the appropriateness of certification under Rule 23(b)(3). Under this subsection, class certification will only be appropriate where “the questions of law or fact common to class members predominate over any questions affecting only individual members[,]” and that the class action is “superior to other available methods” to adjudicate the controversy fairly and efficiently. Fed.R.Civ.P. 23(b)(3); see In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.,
While class action certification does not go to the merits of the litigation, a trial court is permitted to examine the underlying merits of the claim as part of its rigorous analysis, but only to the extent necessary to determine whether the requirement of the rule is satisfied. Wal-Mart,
Plaintiffs motion does not take this Court into uncharted waters. Prior courts have considered class certification of state claims challenging warnings similar to those given by PM USA relative to its light and low tar cigarettes. The majority of the courts to have decided the issue — including every federal court that has been asked to consider certification under Fed.R.Civ.P. 23 — has rejected class certification. See, e.g., McLaughlin v. Am. Tobacco Co.,
Plaintiff acknowledges the weight of authority counseling against class certification of such claims. She insists, however, that these cases are not dispositive of the question of class certification in this case, and that there are factual and legal differences between her claims and those raised in previous litigation that warrant a different result here.
IV. Rule 23(a) Factors
The Court begins with the Rule 23(a) factors. At the hearing, the parties agreed that not all of the Rule 23(a) factors are in dispute. Indeed, PM USA has focused most of its arguments on the “predominance” and “superiority” inquiry mandated by Fed. R.Civ.P. 23(b)(3). Nonetheless, because the Court must employ a rigorous analysis of all factors, the Court will address each factor, touching only briefly on the ones for which there is little disagreement between the parties.
A Numerosity
Rule 23(a)(1) requires the proposed class to be so numerous that joinder of all members would be impracticable. Generally, the numerosity requirement is fulfilled when the number of class members exceeds forty. See Stewart v. Abraham,
B. Commonality
It is well settled that “there need only be one question common to the class[,]” so long as the resolution of that question “will advance the litigation.” Sprague v. Gen. Motors Corp.,
C. Typicality
“A claim is typical if ‘it arises from the same event or practice or course of conduct that gives rise to the claims of the other class members, and if his or her claims are based on the same legal theory.’ ” Beattie v. CenturyTel, Inc.,
While PM USA reserves its arguments for predominance, other courts in light cigarettes litigation have found typicality lacking. In Cleary, the court noted that the plaintiffs suggestion that she was typical because she relied on the defendant’s representations was insufficient to satisfy typicality because claims, such as unjust enrichment, require proof that each plaintiff was harmed by the cigarette manufacturer’s allegedly wrongful conduct. The court found that it was possible that potential class members had purchased the light cigarettes for reasons unrelated to their promise of lower tar and nicotine, and that these consumers realized the benefit that they sought. As such, “the likelihood that some significant proportion of class members experienced no injury at all,” defeated the named plaintiffs representation that her claims were typical of the class. Cleary,
D. Adequacy of Representation
“Adequate representation is essential to a class action because without it there can be no preclusive effect of the judgment.” Elkins v. Am. Showa, Inc.,
The Court has no reason to question the adequacy of the class representative. Plaintiff falls within the class she hopes to represent, and there is every indication that she is willing and able to vigorously represent the interests of the class.
Y. Rule 23(b)(3) Predominance and Superiority
While the Court finds that the Rule 23(a) factors are arguably met, this does not end the inquiry, and, in fact, PM USA directs most of its arguments to the predominance and superiority requirements of Rule 23(b)(3). The predominance requirement is far more exacting than the Rule 23(a) analysis, and requires a showing that common issues predominate over individual ones. See Amchem Prods., Inc. v. Windsor,
A. Differences in Compensation Lead to Different Injuries
A fundamental requirement for class certification is that the plaintiff is able to show that she and the absent class members have suffered the same injury. Dukes,
PM USA’s expert, Dr. Peter Valberg, relied on his review of numerous published studies evaluating the smoking behaviors of consumers who switched to light cigarettes in forming his opinions. He found that the “overwhelming majority of smokers exhibited less than complete compensation[.]” (Doc. No. 85-10 [CD manually filed and maintained by Clerk of Courts] at ¶¶ 57-58.) For these smokers, their less than complete compensation translated into a corresponding decrease in the amount of tar and nicotine they inhaled, as compared to the full flavored eiga-
The fact that a significant percentage of the putative class may have received the benefit of the bargain — namely, a cigarette that delivered lower tar and nicotine — creates a problem for class certification. “A class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant!;.]” Kohen v. Pacific Inv. Mgmt. Co. LLC,
It will also be impossible to distinguish between the class members who did fully compensate and those who did not without conducting individualized hearings on the smoking habits and practices of the members of the putative class. (Doc. No. 85-10 at ¶ 30 [“Whether, when, and how much a specific smoker compensates can only be determined based on information about the individual smoker.”]) Consequently, whether each class member was damaged — and thereby has a cognizable claim — will require “an individual inquiry that cannot be proven on a class-wide basis.”
B. Reliance, Proximate Cause and Common Proof
Other individual inquires would predominate the litigation. The common law fraud claim will require proof that each class member relied upon the allegedly fraudulent representations and omissions and that this reliance was the proximate cause of the injury.
PM USA cites survey evidence and market data that suggest that only a small portion of smokers chose light cigarettes because they believe that there is a health benefit in doing so. (Affidavit of Pascal Fernandez, Doc. No. 85-78 at ¶¶ 46-54, 62-65, Atts. 8-16 [noting that there is no evidence of any impact on price or the relative market share of light cigarettes, which would be expected if smokers purchased lights because of fraud]). PM USA also highlights a well-known 2001 study conducted by the National Cancer Institute (“NCI”), often referred to as “Monograph 13,” which found that there was no convincing evidence that the changes in cigarette design had resulted in the decrease in disease caused by cigarettes. (Monograph 13, Doc. No. 85-25.) Courts have relied on the findings of this study to support a determination that consumers may not have been motivated by health reasons to purchase light cigarettes.
Plaintiff does not attempt to meet her burden of proof by refuting PM USA’s evidence, but, instead, she posits that evidence of varying degrees of reliance is irrelevant because reliance can be presumed across the class. In support, she cites several Ohio cases that have applied this presumption to class actions. (See Plaintiffs Reply Brief, Doc. No. 87 at 4999-5002 [collecting Ohio cases].) Plaintiff relies upon these decisions for the proposition that, when the same written representations are made to the entire class, no individual inquiry as to reliance is necessary. See Cope v. Metro. Life Ins. Co.,
Courts have recognized that such an approach is not warranted in every case. Before the court in Hale v. Enerco Group, Inc.,
Indeed, other federal courts have rejected the use of common proof of reliance in light cigarette cases. See, e.g., McLaughlin,
C. Damages and the Recent Decision in Whirlpool
PM USA argues that, for the same reason that reliance and proximate cause cannot be determined class-wide, individual findings of damages will be necessary. Plaintiff advocates for a finding that the economic loss or harm is the same for each putative class member because each light cigarette purchased was “worth less than” each consumer paid for it. (Doc. No. 82-1 at 2662.) In support of her position, plaintiff relies heavily upon the Sixth Circuit’s recent decision in Whirlpool, wherein the court affirmed the certification of a class of consumers and specifically reserved the issue of damages for
In Whirlpool, consumers brought a putative class action against the manufacturer of front-load washing machines. The class members alleged that the washing machines were prone to developing mold in the wash chamber. The Sixth Circuit affirmed the trial court’s certification of the class, finding that the question of whether the washing machines suffered from a design defect that facilitated the development of mold in the wash chamber was common to the class. Whirlpool,
In so ruling, the court determined that the fact that some of the class members had yet to experience the phenomenon of moldy clothing (and may never) did not defeat class certification because it found that, if the class proved the common defect, then all class members suffered the same injury: they paid a premium for a washing machine that was worth less than they paid for it.
Plaintiff submits that “the Whirlpool case and this case are very similar.” (Doc. No. 87 at 5013). The Court disagrees. Unlike the allegedly defective washing machines in Whirlpool, there is no inherent design defect that rendered the product less valuable, regardless of who purchased it. Rather, the record before this Court demonstrates that, for many, the cigarettes perform precisely the way they are warranted to do — delivering less tar and nicotine. Therefore, there was no common injury upon the sale of the product.
VI. Conclusion
For all of the foregoing reasons, the Court finds that plaintiff has failed to satisfy her burden of establishing that this case is suitable for treatment as a class action. Therefore, plaintiffs motion for class certification is DENIED. Because plaintiff will proceed as the sole party plaintiff, PM USA’s motion to dismiss the class component of plaintiffs common law fraud and unjust enrichment claims is MOOT.
IT IS SO ORDERED.
Notes
. On May 21, 2013, plaintiff Greg Phillips was voluntarily dismissed from this action. (Doc. Nos. 51, 56.)
. Defendant Altria Group, Inc. was voluntarily dismissed on November 5, 2013. (Doc. Nos. 92, 94.)
. Plaintiff also alleges that, when PM USA lowered the amount of tar found in its cigarettes, it deliberately increased the amount of nicotine "and chemically altered its form so that it would escape detection” under the FTC Method. (Doc. No. 1 at ¶ 48.) The complaint further provides that PM USA utilized chemical additives, reconstituted tobacco, alterations to the size and shape of the cigarette, air dilution, and varied
. At the hearing on class certification, plaintiff's counsel suggested that it was unlikely that his client could obtain an injunction because the Food and Drug Administration ("FDA”) had already taken action similar to that sought in the complaint. (Hearing Transcript, Doc. No. 100 at 5313.)
. Plaintiff originally filed her class certification motion on August 26, 2013 (Doc. No. 79), and filed the exhibits to her motion separately. (Doc. No. 80.) On August 29, 2013, the Court granted plaintiff leave to re-file her motion with attached exhibits. This re-filed motion was filed on August 30, 2013. (Doc. No. 82.)
. Greg Philips and Catherine Marrone joined Eva Phillips as plaintiffs in this state court action.
. Following briefing and the motion hearing, the parties filed a series of "notices" of supplemental authority. (Doc. Nos. 95, 97, 101, 103.) In plaintiff's January 30, 2014 notice, plaintiff cites a recent report of the Surgeon General, and highlights the report’s conclusions that the risk of developing adenocarcinoma from cigarette smoking has increased since the 1960s, and that the tobacco industry fraudulently misled the public as to the risks of smoking light cigarettes. (See Doc. No. 103 at 5355-56.) PM USA challenged the filing, insisting that the referenced report does not help plaintiff meet her burden on class certification. (Response, Doc. No. 104.)
. As will be addressed infra, plaintiff also urges the Court to find that the intervening decision in Whirlpool changes the analysis that the Court must employ in ruling on the question of class certification.
. Though PM USA does not argue this point, it is true that plaintiff’s proposed class action would leave individual class members' personal injury claims, if any, unresolved. The Maine district
. Similarly, plaintiff’s unjust enrichment claim will require proof that PM USA unjustly retained the benefit of the bargain without delivering on the promise. See Hambleton v. R.G. Barry Corp.,
. Dr. Valberg also relied upon two peer-reviewed studies that found that most or all of the test subjects received less nicotine after switching to Marlboro Lights. (Doc. No. 85-10 at ¶¶ 60-61.)
. A study relied upon plaintiff proves the point. While the four-week study only analyzed the smoking habits of five smokers who had switched from full flavored cigarettes to light cigarettes, the study found that two out of the five (or 40%) received less tar and nicotine from light cigarettes. (See Doc. No. 82-1 at 2657 [citing Ex. 5]; Declaration of Barbro Goodman, Doc. No. 85-57 [CD manually filed and maintained by the Clerk of Courts] at ¶¶ 23-25.)
. In a similar vein, it would be necessary to perform individual inquires to determine whether each class member's compensation was the result of addiction to nicotine. It is alleged in this action that PM USA intentionally manipulated the levels of nicotine in its Marlboro Lights to ensure addition. (Doc. No. 1 at ¶¶ 48-50; Plaintiff's Brief in Support of Motion for Class Certification, Doc. No. 82-1 at 2659 [alleging that Marlboro Lights were designed "to ensure that smokers of their light cigarettes continued to receive addictive levels of nicotine[.]”]). However, Dr. Valberg opined that not all smokers of Marlboro Lights are addicted to nicotine. (Doc. No. 85-10 at ¶¶ 38-41.) According to Dr. Val-berg, "chippers” — smokers who smoke on a regular basis but do not smoke daily — currently comprise more than 21% of the smoking public and do not typically compensate. (Id.) "Whether a smoker is a chipper can only be determined based on information about the smoker.” (Id. at ¶ 41.)
. It is for this reason that the Advisory Committee Notes to Rule 23(b)(3) (1966 Amendment) provide that "a fraud case may be unsuited for treatment as a class action if there was material variation ... in the kinds or degrees of reliance
. Similarly, unjust enrichment requires a causal connection. See Johnson v. Lindquist, No. 12AP-140,
. Plaintiff challenges PM USA's references to depositions taken in other litigation wherein smokers testified that they either did not believe or did not rely upon the representations that light cigarettes were healthier than full flavored cigarettes, suggesting that such evidence would not be admissible at trial under the Federal Rules of Evidence. While some courts have observed that evidentiary rules are not strictly applied on a motion for class certification, see Fisher v. Ciba Specialty Chems. Corp.,
. Of course, presuming reliance — especially in light of record evidence to the contrary — would be inconsistent with the mandate to engage in a rigorous analysis of the Rule 23 factors. See generally Comcast,
. According to PM USA, potential affirmative defenses — assumption of the risk and the voluntary pay doctrine — also raise individual issues that defeat certification. PM USA argues that assumption of the risk will require individual inquiries into whether the consumer knew and understood the risk and voluntarily accepted it freely. In like fashion, PM USA asserts its statute of limitation and failure to mitigate defenses will also need individualized attention. While "[c]ourts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members[,]” previously federal courts considering the issue of certification of classes in light cigarettes cases have factored the existence of individualized affirmative defenses into their determination that individual issues predominated. Light Cigarettes,
. The court explained that ”[e]vidence will either prove or disprove as to all class members whether the alleged design defects caused the collection of biofilm, promoting mold growth, and whether Whirlpool failed to warn consumers adequately of the propensity for mold growth in the [washing machines].” Id. at 859.
. Likewise, smokers who purchased light cigarettes for reasons other than the promise of lower tar and nicotine, such as flavor, received exactly what they believed they were purchasing.
. It is also worth noting that, unlike the product in Whirlpool, PM USA’s light cigarettes were not sold at a premium. To the contrary, "Lights have always been priced the same as full-flavored cigarettes.” McLaughlin,
individual smokers would have incurred different losses depending on what they would have opted to do, but for defendants’ misrepresentation. For example, smokers who would have purchased full-flavored cigarettes instead of Lights had they known that Lights were not healthier would have suffered no injury because Lights have always been priced the same as full-flavored cigarettes. By contrast, those who would have quit smoking altogether could recover their expenses in purchasing Lights. And those who would have continued to smoke, but in greater moderation, could have recovered something in between. Thus, on the issue of out-of-pocket loss, individual questions predominate; plaintiffs cannot meet their burden of showing that injury is amenable to common proof.
McLaughlin,