By Catherine Martin
The Daily Record Newswire
ST. LOUIS, MO — In 2011, a St. Louis jury deliberated for nearly a week in a case against Philip Morris before declaring a deadlock, resulting in a mistrial.
Earlier this month, a jury in the same case deliberated for less than an hour before they came back with a defense verdict.
The plaintiffs in the case, all cigarette smokers who bought Marlboro Lights between 1998 and 2003, alleged Philip Morris falsely marketed Marlboro Lights as being less harmful than regular cigarettes.
The jury voted 11-1 in favor of the defense — a major shift from the 2011 vote of 8-4 in favor of the plaintiffs.
That change may be because more time has passed between when the class bought the cigarettes and when Philip Morris took “lights” and “lower tar and nicotine” labeling off the packages, said attorney Mark Bronson, who represented the plaintiffs.
Defense attorneys instead speculated the jury was turned off by the high damages in the case — the plaintiffs were seeking about $1.5 billion.
Molly Wilson, a Saint Louis University Law professor who studies jury behavior, said both factors could have played a role in the jury’s vastly different opinion, but she noted it may also be evidence of a shift in society away from governmental intervention and more toward personal accountability.
“That might lead jurors to feel more like people need to be responsible for their own choices and less likely to favor intervention on the part of the court,” Wilson said.
Much has changed in the five years since the case first went to trial, including a main argument of the case.
In 2011, the plaintiffs’ claim was that Marlboro Lights were advertised as less harmful than regular cigarettes when they were not. This time, the claim was not only that Marlboro Lights weren’t any less unhealthy, but that they were actually worse than regular cigarettes.
The shift, Bronson said, was due to a report from the Surgeon General released in 2014 that showed a consensus that ventilated, or light, cigarettes were more dangerous than regular cigarettes, including because of the way people smoked them.
In light of the heightened danger, damages also went up in the case to $1.5 billion, Bronson explained. The 2011 compensatory damages ranged from roughly $696 million to $911 million.
Bronson said he thought the jury was attentive and understood witnesses presenting evidence that Marlboro Lights were more unhealthy than regular cigarettes, but he did concede that the high damages may have been a factor in the jury’s final decision.
“You’re dealing with $1.5 billion. That’s a huge amount of money,” he said.
Other differences between the trials, however, may have also contributed to the shift of the jury. Bronson pointed out that the judge was different, and that the defense added Booker Shaw, who Bronson called “one of St. Louis’ top defense lawyers,” to its already strong team.
Another key difference was that by now, more than five years passed since “lights” was removed from the package, while Philip Morris had just been ordered to remove the wording around the time of the 2011 trial.
Removing the labeling was one of the goals of the original lawsuit in the case, filed back in 2000, Bronson said.
“The product that was at issue was no longer technically being sold. The misrepresentation had been removed from the packaging,” Bronson said.
“That was the difference” between the two trials, he said.
It is also becoming increasingly difficult to try cases in which the plaintiffs are cigarette smokers, as attitudes toward smokers continue to worsen, Bronson explained.
Even since the first trial, there has been another “five to six years of more educational efforts about the harmful effects of smoking.”
The jury makeup in the case showed the change, Bronson said, explaining that in 2011 the jury included about five smokers, but, to his knowledge, there was only one smoker on the panel this time.
“You’re bringing a case on behalf of smokers, who clearly were victims of a fraud and lie, but it’s always difficult to represent individuals who are participating in a harmful activity,” he said.
Shaw, a Thompson Coburn attorney who helped represent the defense, said he thinks public perception of smokers is “probably somewhat the same,” as it was when the case first went to trial in 2011.
“People in this class included people that smoked from 1998 to 2003. Most people will say those people knew there were hazards involved in smoking,” Shaw said.
And even if there is “certain public perception that people have personal responsibility when they choose to smoke,” tobacco companies struggle with public perception issues, too.
“I don’t think the public perception trumps the negative perception people have about tobacco companies,” he said.
To Shaw, the main issue with the case was the high damages and the lack of personal injuries.
“In this case, there was no personal injury claim. It was all about the market value,” he said. “I think that’s a difficult concept for jurors, for anybody, particularly the way this evidence came in.”
Shaw said he didn’t think the evidence proved the plaintiffs’ claims that Marlboro Lights were actually more unhealthy than regular cigarettes.
The case was also complicated and “not particularly intuitive,” Shaw said. Some class members smoked Marlboro Lights because they liked the taste and weren’t necessarily buying the cigarettes for the health benefit of a light cigarette. Several of the class members said they knew the cigarettes were dangerous.
“In a class of plaintiffs so varied… it proves much more of a problem for plaintiffs to prove damages,” Shaw said.
Plus, a number of the plaintiffs still smoke, which may have played a part in the jury’s decision.
But the greatest difficulty for the plaintiffs, from Shaw’s perspective, was the damage model, which he said had significant flaws, including that it was “impossible for them to prove damages at all.”
“The number they came up with was so huge, it was very difficult for jurors to get to a number like that without personal injuries. It was all about the money,” he said.
A complicated picture
Wilson said without talking to the jury it’s hard to pinpoint the exact reason for the notably different conclusion the new jury reached. She does think the shift in the
general populous toward an attitude of personal responsibility is a likely factor in the jury’s decision.
“If you chose to engage in a behavior you know is dangerous, and were misled into thinking it was less dangerous, that doesn’t give you a pass,” she said of current attitudes.
Another possible factor, she said, was that in 2011 people were “still really hurting from the downturn in the economy.” Many were still unemployed or in difficult financial situations.
“I’m imagining in 2011 people were probably more sympathetic to this notion that people are having trouble, financially or otherwise, and should get help from more well-off sources,” she said. “Philip Morris is a huge company.”
Now that the economy is on the upswing, she said, a jury might see less of a need for such measures.
As far as other factors go, Wilson did agree that the habit of smoking has become “very socially undesirable.” But she doesn’t know if attitudes toward smokers have changed much between 2011 and 2016.
She also wasn’t sure about the argument that tobacco companies have to deal with negative public perception, too. There was a period of time when the public was condemning the tobacco industry, but, she said, those sentiments had a shelf life.
“Once that wears off, it comes back to the question of personal responsibility,” she said.
The fact that Philip Morris had changed the packages years ago also may have been a factor, Wilson said, concluding that it’s “a complicated picture,” and “probably multiple things working together.”
“It may be the damages seemed high and a sort of psychological reactant going on here. It may have been other factors, the swing in the direction of personal accountability or the sense that Philip Morris tried to fix their mistake,” Wilson said. “It’s probably a more complicated picture than just one or two things.”
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