SC Number:
CA Number:
Case Title:
Marilyn C. Pearson v. Phillip Morris, Inc.
09:00 AM
Supreme Court Case 1
William F. Gary, Sharon A. Rudnick, John C. Massaro and David E. Kouba, on behalf of Phillip Morris United States of America Incorporated
Scott Shorr, on behalf of Laura Grandin and Marilyn C. Pearson
Statement of Issues:
Marilyn C. Pearson v. Philip Morris, Inc. (S061745) (A137297) (appeal from Multnomah County Circuit Court; opinion reported at 257 Or App 106, 306 P3d 665 (2013)).

Defendant, Philip Morris, Inc., has been granted review of a divided en banc Court of Appeals decision that reversed and remanded a number of aspects of a trial court judgment that denied the motion of plaintiffs (Marilyn C. Pearson, et al.) for class certification and their alternative motion for certification of an issue class. The Court of Appeals concluded that the trial court had erred in various ways, including (1) by granting defendant's motion for summary judgment on the ground that plaintiffs' claims are preempted by federal law; (2) by concluding that a single class action would not be superior to other available methods for adjudicating the controversy because it was premised on the erroneous legal conclusion that all of the elements of liability could not be proven on a common basis; and (3) by basing its decision to deny certification of an issue class on its erroneous legal conclusion that all three elements of plaintiffs' claims required individual inquiries.

On review, the issues are:

(1) In reviewing a trial court's decision not to certify a class, is the appellate court bound by the trial court's findings of fact, if those findings are supported by substantial evidence?

(2) Can the element of reliance under the Unlawful Trade Practices Act be litigated on a class-wide basis if the undisputed evidence establishes -- and the trial court found -- that a substantial number of putative class members did not purchase Marlboro Lights in reliance on the alleged misrepresentations?

(3) At the certification stage, must plaintiffs do more than represent through counsel that an element of their claims, such as ascertainable loss, can be proven on a class-wide basis?

(4) Is plaintiffs' theory of class-wide ascertainable loss -- that an "inherently light" cigarette is worth more than a "possibly light" cigarette -- plausible if undisputed evidence shows that Marlboro Lights sold for the same price as Marlboro Reds?

(5) Did the trial court err in concluding that common issues do not predominate under ORCP 32, when numerous individual issues allegedly would need to be adjudicated separately for each class member by the trier-of-fact?

(6) Did the trial court err in concluding that certification of specific issues is not appropriate under ORCP 32 G, when numerous individual issues allegedly would need to be resolved on behalf of each class member?

The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.
Justice(s) NOT Participating:
Jack L. Landau
Merit Briefs

Last Revised: 06/16/2014