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Courts in Oregon and California have reached dramatically different conclusions in reviewing punitive damage awards in two tobacco cases. Both suits involved individual plaintiffs who sued Philip Morris for negligence and fraud associated with dec ...
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In affirming the trial court’s judgment of dismissal, we hold that the final adjudication on the merits of plaintiff’s loss-of-consortium claim against defendant results in a res judicata bar of plaintiff’s subsequent wrongful death action for loss-ofconsortium damages against defendant arising from the same injury to plaintiff’s spouse that was the basis of the adjudicated loss-of-consortium claim. . . .
Finally, plaintiff argues that applying res judicata to bar her wrongful death action would deprive her of due process because, when she dismissed her loss-of-consortium claim in 2001, she had no “tenable basis” to believe she could assert a claim for loss-ofconsortium damages caused by Mr. Boeken’s death. Civil Code section 3283, however, has authorized tort plaintiffs to recover prospective damages since 1872. Furthermore, plaintiff, in her loss-of-consortium complaint, alleged that Mr. Boeken would be unable “to perform [his] work, services, and duties in the future,” and that she had been “permanently deprived” of his consortium. She thus not only had a “tenable basis” to assert a claim for loss-of-consortium damages for the remainder of Mr. Boeken’s expected lifespan, but she in fact asserted such a claim.
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DISPOSITION
The judgment is affirmed. Philip Morris is to recover its costs on appeal.
I respectfully dissent. In my view, the demurrer should not have been sustained because the prior dismissal of the common law consortium loss claim of plaintiff, Judy Boeken, does not bar her from recovering any damages sustained after her husband’s death. No doubt, there are res judicata consequences of plaintiff’s dismissal of her prior common law consortium loss complaint. But I disagree with the assertion of defendant, Phillip Morris USA, Inc., that the dismissal of the prior common law consortium loss claim bars any recovery on plaintiff’s statutory wrongful death cause of action. . . .
No doubt, plaintiff may be barred from pursuing any damages for pre-death injury. Her dismissal of her common law consortium loss claim may potentially bar any claim for pre-death losses. But as to plaintiff’s post-death claims, she may pursue them in her statutory wrongful death cause of action.
A Los Angeles judge ruled in favor of a 15-year-old boy on an issue related to his lawsuit against Philip Morris, which he claims is liable in the death of his father, a longtime smoker, court papers showed Monday.
Dylan Boeken's father, Richard Boeken, made headlines in 2001 when he won a $3 billion judgment against Philip Morris USA Inc. -- a sum subsequently cut to $55 million.
A Los Angeles judge today began pondering just how much evidence a lawyer needed to present to a jury to prove a 15-year-old boy's wrongful death case against a tobacco giant on behalf of his father.
Richard Boeken died in January 2002 at age 57, seven months after the verdict in his case. The disease had spread to his spine and brain.
Boeken's widow, Judy, and son filed a wrongful death case against Philip Morris on June 2.
Los Angeles Superior Court Judge David L. Minning issued a nine-page ruling in February in which he threw out Judy Boeken's claims entirely, but gave her son a chance to revise his complaint.
The lawsuit was modified, and the boy's lawsuit is set for trial Oct. 29.
Dylan Boeken's lawyer, Michael J. Piuze, maintains most of the issues in the case were decided in the first trial. He said the jury should only have to determine if Boeken died of lung cancer and, if so, what his son's damages are.
Philip Morris wants a complete trial on all the issues.
Minning did not make a final ruling today and took the case under submission.
Do you really think that anyone who smokes cigarettes didn't or doesn't know that they are harmful?
This is the story of Richard Boeken, who sued Phillip Morris in Los Angeles for fraud, negligence and product liability. . . .
I just don't understand these cases. Lung cancer is a horrible thing and it has caused us to lose many wonderful people. I was particularly struck by the death of Johnny Carson, who brought me and many others a great deal of pleasure over the 29 years he did "The Tonight Show."
I believe, however, that people ought to be responsible for their behavior. . . .
No one has ever suggested that they are good for you and it has always been about the fact that they are bad for you. The only question out there has been, exactly how bad are they, and exactly how much damage do they cause?
To me, that does not justify a multi-million dollar award. I do not believe that justice was done in this case.
* CHARLES J. UNGER is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth.
Altria Group Inc.'s (MO) Philip Morris USA unit Monday exhausted its appeals to overturn a $50 million punitive damages award from a deceased smoker lawsuit filed in California.
The U.S. Supreme Court rejected the tobacco company's appeal without comment. Philip Morris has already taken a 3 cent-a-share charge to cover the cost of the court award, and now faces the payment, plus interest.
The court, without comment, declined to hear Philip Morris' appeal of $5.5 million in compensation and $50 million in punitive damages awarded to the widow of Richard Boeken of Los Angeles. . . .
After unsuccessfully seeking state Supreme Court review in the Boeken case, Philip Morris urged the nation's high court to take up the matter and clarify the punitive damage limits. The U.S. Chamber of Commerce supported the request.
The $50 million award for Boeken, more than nine times the jury's $5.5 million compensation verdict, disregarded the rules that the court set in 2003 for cases of substantial compensation, company lawyers argued. They said the courts were punishing Philip Morris for conduct that had nothing to do with Boeken. "The same constitutional violation recurs with great frequency in punitive damage cases throughout the country,'' they wrote. . . .
Michael Piuze, a lawyer for Judy Boeken, said the final amount of damages -- which he described as half of a week's earnings for Philip Morris -- wasn't enough to punish the company.
"Nor do I believe that it will adequately deter future wrongdoing by other giant corporations,'' he said.
The American Legacy Foundation® applauds the court’s decision. Boeken, who smoked two packs of Marlboro cigarettes a day for decades, was diagnosed with lung cancer in 1999, and he died at age 57 in 2002.
Unfortunately, his story is all-too common: smoking-related trachea, lung and bronchus cancers together claim the lives of nearly 125,000 men and women annually in the United States. Quitting smoking does not eliminate the risk of lung cancer, but it does significantly reduce the risk. More Americans lose their lives to lung cancer annually than breast, prostate and colon cancers combined and more must be done to prevent it.
The tobacco industry often issues statements that the American public must be allowed to choose whether or not they want to smoke. Given the highly addictive nature of cigarettes, they do not actually allow for much free choice when it comes to smoking. Unfortunately, these behaviors begin with our nation’s youth. More than 80 percent of smokers start before they are 18, and – just like Boeken – their most common brand of choice is Marlboro.
Ongoing smoking-prevention efforts such as our truth® campaign and the words and actions of parents and doctors across our nation will continue to echo the Supreme Court’s message about tobacco’s deadly toll and an industry that creates a product that prematurely kills one half of the people who use it.
"The U.S. Supreme Court's refusal to review a decision awarding punitive damages of $50 million to the widow of a smoker, in addition to an award of $5.5 million in punitive damages, opens the door to even higher awards of punitive damages in the future, and may signal that the Court would tolerate higher punitive damages in cigarette death cases than in others," says public interest law professor John Banzhaf of Action on Smoking and Health.
In a 2003 decision involving State Farm, the Supreme Court ruled that the award of punitive damages is limited . . .
"There's simply no comparison between insurance company business wrongdoing in settling claims, and the grossly fraudulent conduct of tobacco companies which lead to millions of premature and often very painful deaths," says Banzhaf, referring to the State Farm ruling. "Thus the ordinary rules which may limit the ratio of punitive damages to compensatory damages in ordinary commercial transaction cases may not be relevant when companies deliberately kill people," he said.
Boeken's widow should not get the $50 million in punitive damages or the $5.5 million in compensatory damages (or the $26 million in interest), for the simple reason that her husband knew smoking might kill him but chose to do it anyway. No amount of outrage about Philip Morris' artful evasions can change that basic fact. . . .
The Supreme Court refused yesterday to consider tossing out a $50 million damage award to the family of a two-pack-a-day smoker who died of cancer. . . .
But a lawyer for Philip Morris USA said the company is optimistic.
"The trend in the California cases has been a positive one for the company, since it lost several cases in the late 1990s," said Steve Rissman, an attorney for the company. "Since then, the company has won five consecutive cases at trial in California. . . .
"While the company would have preferred that the U.S. Supreme Court have taken the case, we recognize that the court takes only a very small percentage of the appeals presented to it in any given year and that a denial of the review is not a ruling on the merits," he said.
Although cigarette makers have agreed to some major settlements, including $246 billion to end lawsuits by the states, in more than 50 years of litigation, they have had to write checks to only a handful of individual smokers.
The Boeken award -- consisting of $5.54 million in compensatory damages, $50 million in punitive damages and more than $26 million in interest -- will be the largest recovery by an individual to date.
It will eclipse the previous record payment of $16.7 million last year to a former smoker from Glendale. Philip Morris, a unit of Altria Group Inc. and the top U.S. cigarette maker, lost that case too.
It will eclipse the previous record payment of $16.7 million last year to a former smoker from Glendale. Philip Morris, a unit of Altria Group Inc. and the top U.S. cigarette maker, lost that case too. . . .
Ed Sweda, senior attorney for the Boston-based Tobacco Products Liability Project, which encourages lawsuits against the tobacco industry, said the Supreme Court's decision not to accept the appeal "demonstrates that tobacco litigation remains a viable -- and still emerging -- strategy to promote the public health."
Still, the award is a wisp of its original self. Outraged jurors in Los Angeles County Superior Court had ordered Philip Morris to pay Boeken $3 billion in addition to compensatory damages in June 2001 after finding the company guilty of fraud, negligence, misrepresentation and selling a defective product. . . .
Although the court's decision Monday was a victory for the plaintiff, Piuze said he was not satisfied "with the end result, which is a penalty of one half week of earnings" for Philip Morris. . . .
Legal analysts believe that the court may be more likely to consider an appeal of another verdict that went well beyond the 9-to-1 guideline.
It's an Oregon case in which the $80-million award against Philip Morris includes $79.5 million in punitive damages and $521,000 in compensatory damages -- a ratio of more than 152 to 1.
The Oregon Supreme Court affirmed the verdict last month, setting the stage for a last-ditch appeal to the nation's highest court.
Philip Morris had asked the high court to rule on whether the punitive damages award in the case was excessive, and whether the Federal Cigarette Labeling and Advertising Act prevented smokers from suing under a California state law that allows "consumer expectations" claims in product liability cases. But the justices, in a brief order, said they won't entertain either question
Altria Group Inc.'s (MO) (MO) Philip Morris USA (MO) unit Monday exhausted its appeals to overturn a $50 million punitive damages award from a deceased smoker lawsuit filed in California.
The U.S. Supreme Court rejected the tobacco company's appeal without comment. Philip Morris (MO) has already taken a 3 cent-a-share charge to cover the cost of the court award, and now faces the payment, plus interest.
Philip Morris (MO) had asked the high court to rule on whether the punitive damages award in the case was excessive, and whether the Federal Cigarette Labeling and Advertising Act prevented smokers from suing under a California state law that allows "consumer expectations" claims in product liability cases. But the justices, in a brief order, said they won't entertain either question
The $50 million in punitive damages is from a lawsuit brought by the now deceased Richard Boeken is in addition to $5.5 million in actual damages. Boeken's widow will receive the award. . . .
The 9-1 ratio of punitive damages to actual damages is at the outside edge of guidance the Supreme Court offered in its 2003 State Farm punitive damages decision. But Philip Morris (MO) argued the California award violated the precedent set by the State Farm opinion.
It is simply untenable, after State Farm, to assert than an award producing a ratio of greater than 9:1 comports with due process in this case, especially in light of the substantial compensatory damages imposed.Philip Morris, in its Boeken appeal to the US Supreme Court.
Dec 14 2005 DISTRIBUTED for Conference of January 6, 2006.
Mar 1 2006 DISTRIBUTED for Conference of March 17, 2006.