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UPDATE: Class action lawyers seek $1 billion from Philip Morris

Philip Morris perpetrated a 40-year fraud on Missouri consumers by promising on each pack of Marlboro Lights that the cigarettes delivered lower amounts of tar and nicotine, class action lawyer Stephen Swedlow argued to a jury Monday morning in St. Louis Circuit Court.

In a class action suit that opened in St. Louis Circuit Court on Monday, smokers allege that Philip Morris knew that its “light” cigarettes were no lower in tar and nicotine. Bloomberg News file photo

Swedlow, of Korein Tillery in Chicago, represents Deborah Larsen and a class of Missouri smokers who bought Marlboro Lights in the state between Feb. 14, 1995, and Dec. 31, 2003. The lawsuit alleges violations of the Missouri Merchandising Practices Act. The cigarette-maker sold 700,000 packs of Marlboro Lights during the eight-year class period, the lawyer said.

“Philip Morris promised this product to be ‘lower tar and nicotine’ when they knew it wasn’t,” he told the 20 jurors in Judge Michael David’s courtroom. The company shouldn’t be allowed to profit on its lies, Swedlow argued.

But defense lawyer Beth A. Wilkinson, of Paul, Weiss, Rifkind, Wharton & Garrison in Washington, D.C., said Philip Morris promised cigarettes with lower tar and nicotine, and consumers got cigarettes with lower tar and nicotine. Still, the class lawyers plan to ask the jury for a $1 billion verdict, she said.

Many sources, including the Federal Trade Commission and the National Health and Nutrition Examination Survey, concluded that Marlboro Lights deliver less tar and nicotine than Marlboro Reds, Wilkinson said. The NHANES survey used information conducted by the public health community, she said.

Wilkinson said the plaintiffs’ experts did not dispute the NHANES report because the class lawyers told them not to look at the data.

Swedlow said the cigarette-maker knew as far back as 1967 that measuring the amount of tar and nicotine in cigarettes by machine resulted in data that seemed to show smokers would take in less tar and nicotine in so-called “light” cigarettes.

Despite this study, Philip Morris, under the brand name Marlboro Lights, sold cigarettes that were not really designed to deliver less tar or nicotine to smokers, the lawyer said. In 1975, a Philip Morris study showed that humans don’t smoke the same way the smoking machine does, he said.

Swedlow said Philip Morris kept this information quiet, and, because they relied on data Philip Morris provided, the surgeon general and other members of the public health community recommended that smokers who were unable to quit smoking outright switch to light cigarettes.

That’s not true, Wilkinson said.

The company informed the public health community about the difference between smoking machines and human smokers, including the fact that people who smoke low-tar and low-nicotine cigarettes may alter the way they smoke to get more tar and nicotine, she said. People may take harder draws on the cigarette, take more puffs or cover vent holes, she said.

A 1976 issue of Consumer Reports published an article titled “Less Tar, Less Nicotine, Is That Good?” that said essentially the same thing, Wilkinson told the jury.

Dr. Neal L. Benowitz, one of the plaintiffs’ experts and a pharmacologist at the University of California in San Francisco, went on the national news in 1983 to talk about his research finding that smokers do not get any less tar and nicotine from light cigarettes, the defense lawyer said.

“If we’re keeping a secret we did a pretty bad job if it was on the ABC and CBS evening news,” Wilkinson said.

George Lombardi, of Winston & Strawn in Chicago, attacked the plaintiffs’ method of calculating damages. To the defense lawyer, it’s a simple equation: the cost of Marlboro Lights – the cost of Marlboro Reds = zero damages.

If the Marlboro Lights didn’t provide less tar and nicotine, he argued, then the smokers were actually getting Marlboro Reds. Since the two brands were sold for the same price, there are no damages, he said.

The plaintiffs, however, argued the promise of low tar and low nicotine itself has value.

“Marlboro Reds isn’t what these people got,” Swedlow argued. “They got Marlboro Lights that failed to deliver on its promise.”

Economists and marketing experts measure the value of such promises by performing a simulation called a conjoined analysis, he said.

While Lombardi mocked the analysis as “garbage in, garbage out,” Swedlow said Philip Morris conducts the same type of analysis when it’s considering new products. Swedlow suggested the value of the health reassurance was 98 cents a pack but didn’t discuss damages any further.

The trial is expected to last until before Thanksgiving. It’s the second tobacco-related trial before Judge David this year. In the first trial, involving hospital costs, the jury returned a defense verdict.

The case is Larsen v. Philip Morris, 22002-00406-02.

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