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Carroll v. Philip Morris USA, Inc.

Superior Court of Delaware

May 30, 2017

MARY A. CARROLL and BETTY C. LYNN, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
PHILIP MORRIS USA, INC., a Foreign Corporation, f/k/a PHILIP MORRIS INCORPORATED, Defendant.

          Submitted: February 3, 2017

          Philip M. Finestrauss, Esquire, PHILIP M. FINESTRAUSS, P.A., Wilmington, Delaware; Stephen R. Fine, Esquire, LAW OFFICES OF STEPHEN R. FINE, Manchester, New Hampshire; Finis E. Williams, III, Esquire, FINIS E. WILLIAMS, III, ESQUIRE, Concord, New Hampshire; Attorneys for Plaintiffs.

          Donald E. Reid, Esquire, MORRIS, NICHOLS, ARSHT & TUNNEL, Wilmington, Delaware; John C. Massaro, Esquire and David E. Kouba, Esquire, ARNOLD & PORTER LLP, Washington, DC; Attorneys for Defendant.

          OPINION

          LeGROW, J.

         A long-time smoker of "light" cigarettes seeks to hold the tobacco company that sold the cigarettes liable for economic harm allegedly suffered by the plaintiff and members of a purported class that, if certified, would comprise smokers who purchased "light" cigarettes from the defendant. Confronted with a series of decisions in other jurisdictions denying class certification for similar claims, the plaintiff attempts to distinguish this case on the basis of her allegation that, not only were the cigarettes in question not "safer" than regular cigarettes, they potentially were more harmful due to the mutagenicity of the tar consumers ingested when smoking them.

         The following is only the barest of summaries: the plaintiff contends the defendant, Philip Morris USA, Inc. ("Philip Morris"), fraudulently concealed from consumers and public health agencies that the company's popular cigarettes, Marlboro Lights, "potentially" were more dangerous than full-flavored cigarettes. The plaintiff urges the Court to certify a class consisting of Delaware residents who smoked Marlboro Lights. Philip Morris contends class certification is not appropriate in this case because, among other reasons, the class is not ascertainable and individual issues predominate over those susceptible of common proof. Philip Morris also seeks summary judgment in its favor on the basis that federal law expressly preempts the plaintiffs claims. Finally, Philip Morris seeks to strike the expert report and conclusions proffered by the plaintiffs expert, Dr. Marvin Goldberg.

         There are two key questions in this case. First, does the plaintiffs allegation that Marlboro Lights potentially were more dangerous than full-flavored cigarettes sufficiently distinguish this case from the numerous cases concluding "lights" claims are not amenable to class certification? Second, does a federal law regulating labeling and advertising for cigarettes preempt the plaintiffs state law claims for consumer fraud? For the reasons that follow, I deny the motion for summary judgment as to preemption because the plaintiffs claims arise from a state law imposing a general duty not to deceive, not a law creating requirements or prohibitions regarding smoking and health. I also deny the motion for class certification because individual issues involving causation and fact of injury predominate over the common issues. Finally, I conclude the motion to strike is moot in light of my ruling on the motion for class certification. My reasoning follows.

         FACTUAL AND PROCEDURAL BACKGROUND

         The parties vigorously dispute certain of the plaintiffs factual allegations, but none of those factual disputes are material to resolving the three motions pending before the Court.

         A. The Development of "Light" or "Low-Yield" Cigarettes

         The plaintiff, Mary Carroll, [1] filed this action alleging Philip Morris violated the Delaware Consumer Fraud Act ("DCFA")[2] and unjustly enriched itself by marketing and selling its Marlboro Light cigarettes. In order to understand Ms. Carroll's claims, and the basis on which she seeks certification of the class, it is necessary to have at least a cursory understanding of the development of the market for "light" or "low-yield" cigarettes.

         By the mid-to-late 1950s, concerns were beginning to rise about the health effects of smoking, particularly the ingestion of tar and nicotine. Those concerns reached a crescendo in 1964, when the United States Surgeon General publicly condemned cigarettes, announcing that the death rate among smokers was 70% higher than that among non-smokers.[3] Even before the Surgeon General's warning, Philip Morris internally had begun researching and developing a cigarette intended to deliver less tar and nicotine while maintaining a flavor that appealed to consumers.[4]

         That research led Philip Morris ultimately to brand and market "Marlboro Lights, " which were introduced to consumers in 1971. According to the company's promotional plan, Marlboro Lights were to be marketed to those consumers who were "becoming increasingly aware of tar and nicotine contents in cigarettes and . . . [were] searching for [a cigarette] with low tar and nicotine content and full flavor."[5] Although advertisers were not permitted to represent to consumers that low-yield cigarettes were safer or reduced the health hazards of smoking, the parties agree that, at the time Marlboro Lights were introduced, doctors and public health advocates were advising people to quit smoking or, at a minimum, switch to a low-yield cigarette.[6]

         Plaintiff contends that Philip Morris designed Marlboro Lights to test as delivering lower nicotine and tar on the "FTC Method, " which was the standard testing machine the industry used to measure tar and nicotine output.[7] Guidance from the FTC, issued in 1966, permitted advertisers to make statements to consumers regarding the tar and nicotine yields of cigarettes, provided such statements were based on results of the FTC Method.[8]

         B. The Health Effects of "Light" or "Low-Yield" Cigarettes

         Philip Morris designed Marlboro Lights with an increased number of ventilation holes in the filter, thereby reducing the amount of tar and nicotine that registered on the machine during the FTC Method testing. Plaintiff alleges, with record support, that the amount of tar and nicotine delivered to consumers by a Marlboro Light cigarette often differs from the amount the FTC Method registered because of the variability in individual smokers' behavior. Put differently, Plaintiff argues that, although Marlboro Lights delivered less tar and nicotine in machine testing, the filter on a cigarette is not the exclusive factor in determining how much of those ingredients a smoker actually ingests. There is substantial evidence, which Philip Morris does not dispute, that a consumer can modify, or "compensate" for, a low-yield cigarette in various ways, including covering ventilation holes, inhaling more deeply, or smoking more cigarettes.[9] This compensation may deliver to the consumer a different level of tar and nicotine than the FTC Method indicated.

         Long-term studies of smokers using "light" or "low-yield" cigarettes, including investigations into consumers' compensatory smoking behavior, led the United States Department of Health and Human Services to issue its "Smoking and Tobacco Control Monograph 13" regarding the "Risks Associated with Smoking Cigarettes with Low Machine-Measured Yields of Tar and Nicotine."[10] The report concluded, among other things, that: "Measurements of tar and nicotine yields using the FTC [M]ethod do not offer smokers meaningful information on the amount of tar and nicotine they will receive from a cigarette."[11] Consistent with those findings, in 2008 the FTC rescinded its 1966 guidance permitting companies to market cigarettes as "light" or "low-yield" based on the FTC Method. The FTC's guidance precluded companies from including in advertisements any implication that tar or nicotine yields for a cigarette were based on a testing method the FTC endorsed.[12]

         Plaintiff also contends that, contrary to the suggestion that Marlboro Lights are less dangerous than full-flavored cigarettes, Marlboro Lights' ventilation system actually increased the potential toxicity of the cigarette, making Marlboro Lights potentially more mutagenic than regular cigarettes.[13] Plaintiff asserts that Philip Morris knew Marlboro Lights were "potentially more dangerous" than full-flavored cigarettes, but concealed this knowledge for decades from both consumers and public health agencies. Philip Morris vigorously contests this contention, but that factual dispute presently is not before the Court. For purposes of the pending motions, I will assume that Marlboro Lights potentially were more dangerous than full-flavored cigarettes due to the mutagenicity of the tar. Plaintiff also concedes, however, that Marlboro Lights were not more dangerous to all smokers because that question ultimately depends on the amount and type of tar ingested.[14] Thus, Plaintiff uses the phrase "potentially more dangerous."

         This is the heart of Plaintiff s case, at least as she frames it for purposes of the pending motions: the purported class suffered an economic injury by purchasing Marlboro Lights, a brand of cigarette they believed was less dangerous but that actually potentially was more dangerous than a full-flavored cigarette brand, and consumers made that purchase because Philip Morris fraudulently concealed the facts regarding the potential increased risk Marlboro Lights posed.

         C. The Development of Federal Labeling Requirements

         According to Philip Morris, Plaintiffs fraudulent concealment theory must be considered within the framework of federal law regarding cigarette labeling and advertising. The warnings cigarette companies are required to give about their product, and the advertisements they are permitted to publish, became a matter of federal regulation in the mid-1960's, shortly before Marlboro Lights were introduced to the market. The Federal Cigarette Labeling and Advertising Act (the "Labeling Act")[15] established "a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health."[16] The Labeling Act was intended to both adequately inform the public about "adverse health effects of cigarette[s]" and protect commerce and the economy from "diverse, nonuniform, and confusing cigarette labeling and advertising regulations."[17]

         The Labeling Act expressly included a preemption provision. Section 5(b) of the Labeling Act pertinently provides "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter."[18]

         D. Dr. Goldberg's Report and Smokers' Brand Decisions

         In addition to the factual dispute regarding Marlboro Lights' potential increased risk and Philip Morris's alleged concealment of that risk, causation also will be an important factual issue at trial, specifically whether the members of the purported class would not have purchased Marlboro Lights but for that fraudulent concealment. Plaintiff asserts that causation may be inferred in this case based on the logical inference that, all things being equal, no person knowingly would purchase a cigarette that was more dangerous. From that premise, Plaintiff argues that, had Philip Morris not concealed from consumers and public health agencies its purported knowledge that Marlboro Lights potentially were more dangerous than full-flavored cigarettes, Marlboro Lights never would have been marketed for sale. In support of her causation argument, Plaintiff offers the expert report of Marvin E. Goldberg, Ph.D, whom Philip Morris has moved to strike as an expert in this case.

         Dr. Goldberg's report examines the development of the market for low-yield, high-filtration cigarettes and offers his expert opinion that, "had Philip Morris not concealed that Marlboro Lights are potentially more dangerous than regular cigarettes, it most probably would have never attempted to market Marlboro Lights at all, and certainly would not have marketed Marlboro Lights as a safer cigarette, but it did."[19] Dr. Goldberg explores data and research regarding the reasons for smokers' brand and cigarette-type decisions and concludes that smokers chose to smoke low-yield cigarettes for health reasons, even if they later justified those decisions for other reasons, such as taste.[20]

         Philip Morris, on the other hand, offers evidence it contends precludes a class-wide inference, specifically evidence that individual consumers' reasons for choosing a particular brand and type of cigarette vary widely. For example, Philip Morris cites testimony given by individual smokers who listed their reasons for choosing Marlboro Lights, many of which had nothing to do with the cigarette's low-yield or a belief that it was "safer."[21] Philip Morris also relies on testimony of several smokers who began smoking Marlboro Lights despite believing they potentially were more dangerous than full-flavored cigarettes, along with others who continued smoking Marlboro Lights after filing suit against Philip Morris on the basis that Marlboro Lights potentially were more dangerous than Marlboro Reds or similar types of cigarettes.[22] Furthermore, Philip Morris relies on a number of surveys conducted in the last 40 years, all of which indicate that less than half of smokers chose to smoke low-yield cigarettes because they believed them to be less harmful.[23] Finally, Philip Morris points out that the market for Marlboro Reds did not decline substantially after low-yield cigarettes were introduced, notwithstanding Plaintiffs argument that for many decades smokers were led to believe that full-flavored cigarettes were more dangerous than low-yield cigarettes.

         E. The Proposed Class Definition(s)

         Plaintiffs proposed class definition evolved in response to arguments Philip Morris raised over the course of extensive[24] briefing. Plaintiff now offers two alternative definitions of the class. In her opening brief, Plaintiff offered the following proposed definition of the class (the "Consumer Class Definition"):

All residents of Delaware who purchased Marlboro Lights cigarettes in the State of Delaware for personal consumption during the Class Period .... The class period commences on the first date that the defendants [sic] placed their Marlboro Lights cigarettes into the stream of commerce in Delaware, and runs until the date on which the Court certifies this suit as a class action. Not included within the Class definition are individuals who are directors and officers of the Defendants [sic] or their affiliates. Also[] excluded is any trial judge who may preside over this action.[25]

         In response to arguments Philip Morris raised that residents purporting to qualify under the Consumer Class Definition would need to offer individual proof of their membership in the class, Plaintiff offered a proposed alternative definition, which was based on Philip Morris's Marlboro Miles Program (the "Miles Program"), an incentive-based promotional campaign that allowed consumers to collect "Miles" that were printed on Marlboro cigarette packaging.[26] Those Miles could be exchanged for merchandise.[27] The company operated that program between 1992 and 2006.[28] A consumer redeeming Miles was required to fill out a form identifying the consumer's "regular" brand of cigarette. The Miles themselves also were color-coded based on the type of Marlboro package from which they originated. Although Philip Morris shredded the paper "Miles" once they were redeemed for merchandise, the company maintained its "Adult Tobacco Consumer Database" of individuals who redeemed Miles when the program was active. That database includes the tobacco consumer's mailing address and the brand (if any) the consumer identified as their current or preferred brand.[29]

         Plaintiff therefore contends that, even if the Consumer Class Definition fails because it would require individual proofs by each person claiming membership in the class, the following alternative class definition (the "Marlboro Miles Class Definition") resolves that issue:[30]

All Delaware residents who purchased for personal consumption Marlboro Lights cigarettes in the State of Delaware who are identified in defendant's Adult Tobacco Consumer Database as having a Delaware address when ordering Marlboro Miles ("Miles") merchandise and who reported smoking Marlboro Lights during the Miles program and prior to or at the time of ordering Miles merchandise.
The class period commences on the first date that defendant placed its Marlboro Lights cigarettes into the stream of commerce in Delaware which had imprinted on the packages of the Marlboro Lights cigarettes Marlboro Miles Program proof of purchase miles, and runs until the latest date on which the defendant or its designated agent received order forms with Marlboro Miles proof of purchase miles to obtain merchandise to be shipped to a recipient with a Delaware address. Not included within the Class definition are individuals who are directors and officers of the defendant or their affiliates. Also[] excluded is any trial judge who may preside over this action.[31]

         ANALYSIS

         There are three motions presently pending before the Court: (1) Philip Morris's Motion for Summary Judgment Based on Federal Preemption, (2) Plaintiffs Motion for Class Certification, and (3) Philip Morris's Motion to Strike Dr. Goldberg's Expert Report. I address each motion below.

         I. Philip Morris's Motion for Summary Judgment

         Philip Morris argues it is entitled to summary judgment in this action because Plaintiffs claims are preempted by the Labeling Act, specifically the language in Section 5(b) that prohibits any State law that imposes a "requirement or prohibition based on smoking and health . . . with respect to the advertising or promotion of any cigarettes . . . ." The parties' contentions do not implicate any disputed factual issues, but instead require the Court to determine the scope of preemption under Section 5(b).

         A. The Parties' Contentions

         Philip Morris initially raised federal preemption in this case in 2006, which Plaintiff resisted on the basis that her claims were not grounded, as Philip Morris contended, on concealment or a failure to warn, but rather on fraudulent misrepresentations Philip Morris made regarding Marlboro Lights. Philip Morris's motion was stayed pending resolution of the United States Supreme Court's decision in Altria Group, Inc. v. Good, [32] which addressed the scope of preemption under Section 5(b). After the Court's decision in Good, Philip Morris did not pursue its summary judgment motion on the basis of federal preemption, agreeing that preemption was not available "to the extent that [P]laintiff s claims mirror those in Good."[33]

         After Plaintiff filed her Motion for Class Certification, however, Philip Morris renewed its federal preemption argument, asserting: Plaintiffs theory of the case had "drastically change[d]"[34] because she no longer was relying on Philip Morris's affirmative misrepresentations, but instead was relying on a theory that Philip Morris concealed, suppressed, or omitted the material fact "that the increased filter ventilation in Marlboro Lights make them potentially more dangerous than regular cigarettes."[35] According to Philip Morris, this distinction is material because, under Good, Section 5(b) preempts fraudulent concealment claims, but not fraudulent misrepresentation claims. Plaintiff resists this characterization of Good and its related cases, urging that the relevant analysis is whether the state law on which the claim is based "constitutes a 'requirement or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising or promotion.'"[36]

         B. Federal Preemption: an Overview

         Under the Supremacy clause of the United States Constitution, state law is preempted by federal law when (1) Congress expresses a clear intent to preempt state law in enacting a federal statute, or (2) Congress intends, through comprehensive legislation, to occupy an entire field of regulation and has left no room for the states to supplement federal law.[37] Here, the parties agree Congress expressly intended the Labeling Act to preempt state law. The question, quite simply, is the scope of that preemption.

         In resolving that question, the Court must be guided by the principle that there is a presumption against preemption. To avoid "unintended encroachment" on a state's authority, "a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption. Thus, pre- emption will not lie unless it is 'the clear and manifest purpose of Congress.'"[38] Because of this presumption against preemption, this Court must "fairly but . . . narrowly" construe the language in Section 5(b).[39] The defendant bears the burden of demonstrating preemption, [40] and congressional intent is the "ultimate touchstone" of the analysis.[41]

         C. The United States Supreme Court's Interpretation of Section 5(b)

         In construing Section 5(b), I am bound by the United States Supreme Court's interpretation of the clause. That Court has interpreted Section 5(b) on two relevant occasions: Cipollone v. Liggett Group, Inc.[42] and Altria Group, Inc. v. Good.[43] In Cipollone, the named plaintiff alleged she developed lung cancer as a result of smoking cigarettes.[44] She brought a series of claims against the defendants, including that the defendants: (1) failed to provide adequate warnings about the health consequences of smoking (the "failure to warn claims"), (2) neutralized, through their advertisements, the federally mandated warning labels on cigarettes (the "neutralization claims"), (3) possessed, but "ignored and failed to act upon" medical and scientific data indicating cigarettes were hazardous to consumers' health, and (4) conspired to defraud by depriving the public of that medical and scientific data.[45] The defendants contended the Labeling Act preempted all those claims.

         A plurality of the Supreme Court concluded some, but not all, of the claims were preempted. First, the plurality rejected the plaintiffs argument that Section 5(b) did not preempt common law claims and instead only applied to statutory enactments. The Court reasoned that the phrase "no requirement or prohibition" in Section 5(b) "sweeps broadly and suggests no distinction between positive enactments and common law."[46] The plurality concluded, however, that not all common law actions were preempted and that no "familiar subdivision of common-law claims" were subject to, or escaped from, preemption. Rather, the plurality identified the "central inquiry" as the nature of the predicate duty on which each claim is based:

[W]e ask whether the legal duty that is the predicate of the common-law damages action constitutes a "requirement or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising or promotion, " giving that clause a fair but narrow reading.[47]

         Applying this "predicate duty" analysis to the claims at issue in Cipollone, the plurality concluded the plaintiffs failure to warn and neutralization claims were preempted by Section 5(b) to the extent those claims were based on a statutory or common law requirement or prohibition with respect to advertising or promotion. The plurality explained that, to the extent the plaintiffs claims would require the defendants to provide additional or clearer warnings, those claims were preempted, but the claims were not preempted to the extent they relied on the defendants' testing or research practices, or other actions unrelated to advertising or promotion.[48]

         As to the plaintiffs fraud claims, which included claims that the defendants both falsely represented and concealed material facts, the plurality reasoned those claims largely were not preempted because the predicate duty was a general duty not to deceive, not one based on "smoking and health.'" The plurality similarly concluded the plaintiffs conspiracy to defraud claims were not preempted. The plurality explained:

Section 5(b) pre-empts only the imposition of state-law obligations "with respect to the advertising or promotion" of cigarettes. Petitioner's claims that respondents concealed material facts are therefore not pre-empted insofar as those claims rely on a state-law duty to disclose such facts through channels of communication other than advertising or promotion. Thus, for example, if state law obliged respondents to disclose material facts about smoking and health to an administrative agency, § 5(b) would not pre-empt a state-law claim based on a failure to fulfill that obligation.
Moreover, petitioner's fraudulent-misrepresentation claims that do arise with respect to advertising and promotions (most notably claims based on allegedly false statements of material fact made in advertisements) are not pre-empted by § 5(b). Such claims are predicated not on a duty "based on smoking and health" but rather on a more general obligation the duty not to deceive. This understanding of fraud by intentional misstatement is appropriate for several reasons. First, in the 1969 Act, Congress offered no sign that it wished to insulate cigarette manufacturers from longstanding rules governing fraud. To the contrary, both the 1965 and the 1969 Acts explicitly reserved the FTC's authority to identify and punish deceptive advertising practices—an authority that the FTC had long exercised and continues to exercise. See § 5(c) of the 1965 Act; § 7(b) of the 1969 Act; see also nn. 7, 9, supra. This indicates that Congress intended the phrase "relating to smoking and health " (which was essentially unchanged by the 1969 Act) to be construed narrowly, so as not to proscribe the regulation of deceptive advertising.[49]

         Philip Morris reads this Cipollone passage narrowly, arguing the Court concluded that fraudulent concealment claims, such as those alleged by Plaintiff in this case, are preempted unless they "rely on a state-law duty to disclose such facts through channels of communication other than advertising or promotion." In contrast, Philip Morris contends, affirmative misrepresentations contained in advertisements or promotions are not preempted under Cipollone.

         In the wake of Cipollone, courts applying the plurality's opinion and the "predicate duty" standard diverged on whether Section 5(b) preempted fraudulent concealment claims.[50] Many courts, at least implicitly, rejected the interpretation of the case that Philip Morris urges here. For example, in Shepard v. Philip Morris, Inc., the United States District Court for the Middle District of Florida, applying Cipollone, concluded that the plaintiffs' fraudulent concealment claims were not preempted by Section 5(b) because those claims were based on a duty not to deceive and were distinct from failure to warn claims, which were preempted.[51] The Court of Appeals of Minnesota reached a similar conclusion in Da hi v. R.J. Reynolds Tobacco Co., holding that the plaintiffs' fraudulent concealment claims were not preempted under Section 5(b) and Cipollone.[52] Similarly, the Sixth Circuit Court of Appeals in Glassner v. R.J. Reynolds Tobacco Co. held that the plaintiffs claims for misrepresentation and concealment were preempted to the extent they were based on a duty to issue clearer or additional warnings, but not to the extent they were based on a general "duty not to deceive."[53]

         Other courts disagreed, however, and this split among the circuits[54]prompted the Supreme Court in Good to again address the scope of Section 5(b).[55]The plaintiffs in Good brought claims against tobacco companies that sold "light" or "low-yield" cigarettes, alleging claims for fraudulent misrepresentation and concealment on the basis, among other things, that: "'Light' cigarettes are in fact more harmful because . . . their unique design features produce[] smoke that is more mutagenic per milligram of tar than the smoke of regular cigarettes."[56] A majority of the Supreme Court adopted Cipollone as the correct interpretation of Section 5(b) and held that Cipollone was "directly applicable" to the plaintiffs' fraud claims.[57] The Good Court held that the plaintiffs' fraud claims alleged a breach of the duty not to deceive and therefore were not preempted.[58] The Court explained that the Maine Unfair Trade Practices Act, under which the plaintiffs' fraud claims arose, said nothing about smoking or health and therefore was "a general rule that creates a duty not to deceive, " rather than a rule respecting smoking or health.[59]

         Following Good, a lack of uniformity remains among courts that have considered whether fraudulent concealment claims are preempted by Section 5(b). In Pooshs v. Phillip Morris USA, Inc., the United States District Court for the Northern District of California held that the plaintiffs claims for fraudulent concealment were preempted to the extent they were based on statements in advertisements or promotions because such claims were "indistinguishable" from a failure to warn claim.[60] The Supreme Court of Appeals of West Virginia reached a similar conclusion in In re Tobacco Litigation, holding that the plaintiffs' fraudulent concealment claims were preempted under Section 5(b) because those claims alleged the defendants should have disclosed concealed information through advertisements and promotions.[61] Both the Pooshs and In re Tobacco Litigation courts adopted the narrow reading of Cipollone advanced by Philip Morris in this case, namely that fraudulent concealment claims only escape preemption if they "allege concealment in some channel other than advertising or promotion."[62]

         Other courts, however, have held that fraudulent concealment claims are not preempted. In Grill v. Philip Morris USA, Inc., the United States District Court for the Southern District of New York held that the plaintiffs fraudulent concealment claims were not preempted, among other reasons, because they were "not predicated on a duty based on smoking and health, but rather on the more general duty not to deceive."[63] In the similarly named, but unrelated case Grills v. Philip Morris USA, Inc., the United States District Court for the Middle District of Florida held that the plaintiffs claims that the defendants "deliberately concealed material facts from the public" were similar to those in Cipollone and Good and were not preempted even to the extent they were based on allegedly false statements in advertisements.[64] In both cases, the district courts rejected a narrow reading of Cipollone, focusing on the predicate duty analysis, rather than on whether the misrepresentation or concealment stemmed from an advertisement or promotion.[65]

         These cases form the landscape from which this Court must determine whether Section 5(b) preempts Plaintiffs claims that Philip Morris violated the DCFA and unjustly was enriched by fraudulently concealing the truth about the health risks associated with Marlboro Lights.

         D. Plaintiffs Claims are Not Preempted.

         As the United States Supreme Court itself has acknowledged, the standard announced in Cipollone and adopted by the majority in Good lacks a degree of "theoretical elegance."[66] In my view, however, the predicate duty standard, as applied by the Court in Cipollone and Good, lends itself only to one conclusion: Plaintiffs claims are not preempted.

         It reasonably cannot be argued that the DCFA is a "requirement or prohibition" based on "smoking and health." To the contrary, it is a codification of a general duty not to deceive consumers and applies to all manufacturers and sellers of any product. Philip Morris argues, however, that this Court should draw a distinction similar to that drawn in Pooshs and In re Tobacco Litigation, namely that although fraudulent misrepresentations may not be preempted, claims for fraudulent concealment cannot be distinguished from failure to warn claims and therefore are preempted.

         That argument, however, is inconsistent with Cipollone and Good. With all respect for the courts in Pooshs and In re Tobacco Litigation, I believe their reading of Cipollone is too narrow and cannot be reconciled with the "predicate duty" standard developed by the Cipollone plurality and adopted in Good. To focus narrowly on whether the concealment or misrepresentation occurred in an advertisement or promotion is to ignore the limitation in Section 5(b) regarding whether the requirement or prohibition relates to smoking or health. Moreover, the fact that fraudulent concealment claims often could be pleaded as failure to warn claims does not, as the Pooshs and In re Tobacco Litigation courts seem to conclude, support a conclusion that the concealment claims are preempted. The Supreme Court in Good expressly acknowledged this possibility, but concluded it was immaterial to the preemption analysis.[67]

         The conclusion Philip Morris urges also draws an artificial distinction between fraudulent concealment and fraudulent misrepresentation claims. In the context of cases such as this, identifying a clear line between a claim of fraudulent misrepresentation and one of concealment nearly is impossible. Perhaps for that reason, the Cipollone plurality addressed those claims as one, concluding they were not preempted. The DCFA draws no distinction between affirmative misrepresentations and fraudulent concealment, but instead designates both as violations of state law. The "slight" distinction between concealment and misrepresentation previously has been acknowledged by this Court.[68] Drawing a distinction between misrepresentation and concealment for purposes of delineating the scope of preemption under Section 5(b) is both inconsistent with Supreme Court precedent and unworkable in practice.

         Applying the predicate duty analysis to this case, both the concealment claims and the misrepresentation claims at issue arise from a duty not to deceive. Those claims therefore are not preempted. For all the foregoing reasons, Philip Morris's Motion for Summary Judgment is DENIED.

         II. Plaintiffs Motion for ...


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