Liability Without Harm: Is There a New Source of Catastrophic Liability Lurking Within Your State's Consumer Protection Statute?

The $10.1 billion judgment entered against Philip Morris in an Illinois state court in 2003 received national attention, as did the reversal of that judgment in December 2005. Price v. Philip Morris Inc., No. 00-L-112 (Ill. Cir. Ct. March 21, 2003), rev'd, No. 96236 (Ill. Sup. Ct. Dec. 15, 2005). Less well known, however, is the theory under which the plaintiffs won their judgment at trial. Unlike the plaintiffs in some other large tobacco verdicts, the plaintiffs in Price did not claim personal injury or wrongful death. Instead, the plaintiffs alleged that Philip Morris deceived them into believing that 'light' cigarettes were safe and caused an entire class of people to pay more for the cigarettes than they should have.

While the Price case is the most highly publicized example, it is by no means the only case in which plaintiffs have sued a product manufacturer without claiming to have suffered a physical injury. Across the country, manufacturers of many different products are facing an increasing number of class action suits under state consumer protection or unfair trade practice statutes in which the plaintiffs claim only to have suffered economic harm. In these cases, the plaintiffs assert that their injury is the 'lost benefit of the bargain' ' the difference in market value between the promised product and the delivered product.