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Karen L. Lawrence v. Philip Morris Usa

August 21, 2012

KAREN L. LAWRENCE
v.
PHILIP MORRIS USA, INC.



The opinion of the court was delivered by: Dalianis, C.J.

Argued: June 7, 2012

This is an interlocutory appeal from an order of the Superior Court (Smukler, J.) that certified a class represented by the plaintiff, Karen L. Lawrence, consisting of "all individuals who purchased Marlboro Lights cigarettes in New Hampshire from January 1, 1995, until the date of trial." See Sup. Ct. R. 8. The superior court transferred a single question for our review:

Did the Superior Court err in its application of New Hampshire law when it granted Plaintiff's Motion for Class Certification?

We answer this question in the affirmative and reverse the trial court's certification order.

I. Background

We accept the statement of the case and facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary. See Rainville v. Lakes Region Water Co., 163 N.H. 271, 273 (2012). The plaintiff alleges that she purchased and consumed Marlboro Lights cigarettes (Lights) from approximately 1975 until February 2001. She alleges that the defendant, Philip Morris USA, Inc. (Philip Morris), by using the name "Lights" and describing the cigarettes as "Lowered Tar & Nicotine," violated the New Hampshire Consumer Protection Act (CPA). See RSA ch. 358-A (2009 & Supp. 2011). These descriptions, she contends, falsely represented that Lights would deliver less tar and nicotine than other cigarettes.

The plaintiff alleges that the filters of Lights had ventilation holes that diluted the tar and nicotine delivered per puff as measured by smoking machines. She alleges that Philip Morris specifically designed Lights to "pass" the machine tests while delivering to human smokers the same amount of tar and nicotine delivered by regular Marlboro cigarettes (Regulars). The plaintiff thus argues that the product Philip Morris actually sold, a cigarette that delivered the same levels of tar and nicotine as a regular Marlboro, was worth less than the product Philip Morris promised, a cigarette that delivered less tar and nicotine. She seeks actual and statutory damages based upon this difference in value. She does not seek personal injury damages.

The plaintiff initiated this action in March 2002. In November 2010,

pursuant to RSA 358-A:10-a, which allows class representation in CPA claims, the trial court certified a class represented by the plaintiff, consisting of all individuals who purchased Lights in New Hampshire from the date they were first introduced into New Hampshire's stream of commerce until the date of trial. The trial court later adjusted the class period so that it began on January 1, 1995. The only issue before us is whether the trial court properly certified this class.

II. Analysis

A. Standard of Review

Philip Morris argues that the trial court erred by certifying the class because common issues of law or fact do not predominate over questions affecting only individual class members. See RSA 358-A:10-a, II(e)(3). In deciding this question, because the parties do not argue otherwise, we assume, without deciding, that our case law discussing the predominance requirement for classes certified under Superior Court Rule 27-A applies. See Petition of Bayview Crematory, 155 N.H. 781, 785-86 (2007) (acknowledging that Rule 27- A(a)(2) combines the requirement that the proposed class share at least one significant question of law or fact in common and the requirement that common issues predominate).

To satisfy the predominance test, the issues common to the proposed class must outweigh the issues that are particular to the individual class members. Id. at 785. The test's purpose is to promote economies of time, effort, and expense and to promote uniformity of decision as to persons similarly situated. Id. at 785-86. "To achieve these pragmatic goals, the trial court must consider how the case will be tried by identifying the substantive issues that will control the outcome of the case, assessing which issues will predominate, and determining whether those issues are common to the class." Id. at 786.

Thus, the trial court must go beyond the facts alleged in the pleadings to understand the claims, defenses, relevant facts, and applicable substantive law and meaningfully determine the certification issues. Cantwell v. J & R Props. Unlimited, 155 N.H. 508, 512 (2007). This rigorous analysis requires that the trial court receive enough evidence, by affidavits, documents, or testimony, to be satisfied that the plaintiff has met each class certification requirement. Id. at 512-13. The trial court must employ its discretion, however, to avoid transforming ...


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