LITTLE ROCK — A Pulaski County Circuit judge on Tuesday set a threeday hearing for October to determine whether a 9-yearold lawsuit against cigarette maker Philip Morris USA can proceed as class-action litigation.
The suit seeks to pit every Arkansas smoker of Marlboro Lights over a 38-year period against the tobacco company.
The lawsuit accuses the company, the tobacco division of Altria Group Inc., of violating the Arkansas Deceptive Trade Practices Act by falsely marketing “light” cigarettes as safer than regular cigarettes because of lower levels of tar and nicotine.
The plaintiffs claim Marlboro Light smoke is actually more dangerous than regular cigarettes. Congress barred marketing tobacco as “light” or “low-tar” in 2009, and Philip Morris changed the name of Marlboro Lights to Marlboro Gold Pack in 2010.
According to the suit, plaintiffs Wayne Miner of Franklin County and James Easley of Miller County smoked about two packs of Lights a day until learning about the allegations in early 2000. The first two plaintiffs, Lisa Watson and Loretta Lawson, have withdrawn from the case.
The Oct. 22 hearing will be for Circuit Judge Tim Fox to hear evidence to consider whether the lawsuit should be certified as class-action, which requires the plaintiffs to prove that the class is so large that it is impractical to join each plaintiff individually.
The proposed representatives for the plaintiff group also must show that all the potential plaintiffs’ claims are so common and typical that the proposed representatives will adequately represent everyone.
Also Tuesday, the judge imposed a confidentiality order on the plaintiffs that had been requested by Philip Morris over the plaintiffs’ objections.
The cigarette maker estimated the order would apply only to about 9 percent of the 4.9 million documents produced during the course of nationwide tobacco litigation, according to the pleadings.
The documents allowed to be disclosed publicly can be found at a company website, pmdocs.com, while materials claimed by the company to be confidential and “highly confidential” — about 350,000 documents with about 2.3 million pages — are available through a second site accessible only by the lawyers. Those confidential documents contain trade secrets or other proprietary information like research, pricing information, manufacturing techniques, recipes and formulas, court filings show.
Other courts already have granted the level of confidentiality the company is seeking in the Arkansas case, according to defense filings.
Under the terms of Fox’s order, any highly confidential documents that have to be produced to the plaintiffs would have to be kept in a locked “secure” room in their lawyers’ offices and built by security consultants at Philip Morris’ expense. Only a limited number of plaintiffs’ representatives can view the documents, and they must sign confidentiality agreements. A plaintiffs’ law firm in New York has already had one such room constructed, court filings show.
Plaintiffs argued that Philip Morris’ demand for secrecy is exaggerated and intended to hide information about “noxious ingredients” and the extent of executives’ knowledge about the dangers of smoking.
The lawsuit was filed in April 2003, but Tuesday’s hearing was only the second time the lawyers have appeared in circuit court. The case was delayed for three years after the cigarette maker attempted to move it to federal court.
The U.S. Supreme Court resolved the jurisdictional question in June 2007, ruling that Fox’s court was the appropriate venue because Philip Morris is not protected from state litigation by federal regulations that govern making and marketing cigarettes.
A second year-long delay resulted when the defense tried to move the lawsuit back to federal court under the 2005 Class Action Fairness Act, which a Maine federal court determined the act did not apply because the lawsuit was filed before Congress passed the fairness measure.
Arkansas counsel for the plaintiffs are the Thrash Law Firm and the Carney Williams Bates Pulliam & Bowman firm while Mitchell, Williams, Selig, Gates & Woodyard are local representation for Philip Morris.
Arkansas, Pages 14 on 12/19/2012