Page:Philip Morris Companies v. Miner.pdf/21

 she believed that it was a "healthier" cigarette.

I also agree with Philip Morris that the necessity of determining the individual smoking habits, particularly with regard to whether a class member has sustained actual damages also defeats the superioriry requirement of Rule 23. Neither side disputes that "minitrials" would be required to determine actual damages. Because the class is not ascertainable, no one can predict how many of these minitrials will be necessary, although it will be at least several thousand because Philip Morris expressed its intention to assert its due-process right to rebut each element of plaintiffs' claims. Accordingly, the circuit court's finding that superioriry was satisfied because it would not be "cost effective" for each putative class member to file separate lawsuits," is clearly wrong because each class member would end up in that position anyway. Furthermore, I cannot ignore that Arkansas Code Annotated section 4-88-113(f) states that in private enforcement actions, reasonable attorney's fees would be awarded, so an individual private plaintiff would not incur the cost of paying for representation.

The circuit court also erred in certifying the class because it is not ascertainable. The majority echoes the appellees' contention that ascertainabiliry is somehow entitled to lesser consideration because it is not a textual requiremenr in Rule 23 and, as counsel for the appellees disdainfully described it, "only judicially created." I contend that however this requirement was engendered, be it through a rule of civil procedure promulgated by this court or from one of our judiical opinion, ascertainability is entitled to equal dignity.

Philip Morris argues that this case is analogous to Ferguson v. Kroger Co., 343 Ark.