7/5/2013 1:27:00 PM,
Jeff D. Gorman
(CN) - Philip Morris must face a class action from consumers who smoked Marlboro Lights since their introduction in 1971, an Oregon appeals court ruled.
Marilyn Pearson and Laura Grandin hope to represent a class of approximately 100,000 smokers who bought Marlboro Lights from 1971 to 2001.
The cigarettes had 13 mg of "tar," as opposed to 18 mg in regular Marlboros. The plaintiffs say Philip Morris mischaracterized the cigarettes in violation of the Unfair Trade Practices Act.
Their argument relied on the fact that the amount of tar and nicotine delivered can vary based on the different ways to smoke a cigarette, such as covering the dilution holes in the filter.
They sought relief from the Oregon Court of Appeals after a Multnomah County judge found no evidence that a class action would be superior to individual lawsuits for the plaintiffs.
Judge Janice Wilson had also granted Altria, as the company is now known, summary judgment based on her conclusion that federal law pre-empts the plaintiffs' individual claims.
The Salem-based appeals appellate court roundly reversed on June 19 after an en banc hearing.
"A jury could find that a person who had purchased what was represented to be an inherently light cigarrette but was actually only a potentially light cigarette had suffered an ascertainable loss because the person overpaid," Judge Rex Armstrong wrote for the 10-person court.
"Contrary to the trial court, we have concluded that the misrepresentation, ascertainable loss, and causation elements of plaintiff's claim are all common issues, he added. "Thus, the entire liability portion of the claim can be litigated through common evidence."