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Docket for 05-594 

Nov 8 2005 Petition for a writ of certiorari filed. (Response due December 12, 2005) . . .

Mar 1 2006 DISTRIBUTED for Conference of March 17, 2006.

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Supreme Court won't review tobacco award 

The Supreme Court refused Monday to consider tossing out a $50 million damage award to the family of a two-pack-a-day smoker who died of cancer.

Philip Morris USA, which controls about half the U.S. cigarette market, had asked the justices to declare the award unconstitutionally excessive and to rule that the company should have been shielded from some of the smoker's claims.

Justices declined, without comment.

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• Court allows $50 mln award vs Philip Morris 

The U.S. Supreme Court declined to review on Monday a $50 million punitive damages award against Altria Group Inc's Philip Morris unit in the case of a longtime smoker who was diagnosed with lung cancer and then died.

The lawsuit against the tobacco company had been filed in California state court by Richard Boeken, who said he smoked two packs of Marlboro cigarettes a day for decades. Diagnosed with lung cancer in 1999, he was 57 when he died in 2002. . . .

Philip Morris told the high court it cannot be held liable under state law for failing to provide additional warnings about the dangers of smoking, beyond what is required under the federally mandated warning labels on cigarette packs.

The Federal Cigarette Labeling and Advertising Act pre-empts such state law claims, it said. The lawsuit cited the product liability theory, known as the "consumer expectations test," that cigarettes were more dangerous than consumers realized, despite the warnings on each pack.

Philip Morris also said the $50 million punitive damages award to a single plaintiff was "unconstitutionally excessive." The company's appeal was supported by the Chamber of Commerce business group. . . .

The Supreme Court rejected both appeals without any comment or recorded dissent.

A jury in Los Angeles awarded Boeken a record $3 billion in punitive damages and $5.5 million in compensatory damages. The trial judge then reduced the punitive damages award to $100 million.

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KILPATRICK: Tobacco: Smokers deserve not a dime 

now and then a case comes along that offends the jaded eye: It pits wrong against wrong, i.e., an indefensible plaintiff sues an indefensible defendant. Consider, if you please, Philip Morris v. Judy Boeken, Trustee.

Counsel for the tobacco company last month asked the Supreme Court to hear its appeal from a hefty judgment last April in the California Court of Appeals. The case involves an award of $55 million in damages to the widow of a fellow in California who couldn't quit smoking. The question is, whose fault was that? The fault of Philip Morris? Or the fault of Richard Boeken?

Full disclosure: Your court columnist, meaning me, began smoking the stubs of his father's cigars in 1932. . . .

Nothing worked. And then, eight years ago, as a recent widower, I fell in love. That did it. My lady made it clear: It was Marianne or Marlboros, but not both. I have not touched a cigarette since Dec. 31, 1997. . . .

At trial, he swore that if Philip Morris had ever told him that cigarettes cause lung cancer and death, "he would not have smoked.''

Well, hokum! Richard Boeken was neither deaf, dumb nor blind. . . .

In its opinion last April, the California court attempted to justify the jury's staggering award. "This is basically a case of wrongful death resulting from fraudulently marketing a defective product.'' Well, permit a dissenting opinion. This is basically a case of a predictable death resulting from the purblind stupidity of a man who didn't have the willpower to quit 40 years ago.

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• Smoker suit against US tobacco giant wafts toward US Supreme Court: lawyer 

Unsatisfied with legal rulings that spared it from paying billions of dollars in damages, Philip Morris wants the US Supreme Court to snuff out a lung cancer victim's civil suit, a lawyer said.

The international cigarette purveyor has asked a judge for permission to delay paying the dead smoker's wife until the nation's top court has a chance to review the civil suit.

Richard Boeken's civil trial with Philip Morris ended in 2001 with a jury awarding him 5.5 million dollars in compensation and three billion in punitive damages. . . .

"I was trying to get back 2.95 billion dollars which had been ripped away from us," Piuze said of the fight to have the case reviewed.

"When you catch someone committing a major fraud, you punish them for all the other times they got away with it." . . .

"I think that, generally, when it comes to major issues that affect tens of thousands of people, the court system is more inclined to hear what business has to say than what human beings have to say," Piuze said.

"I think that is just the way it was set up."

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• Philip Morris Vows to Appeal Judgment to U.S. High Court 

Philip Morris USA said Thursday that it would ask the U.S. Supreme Court to reverse a California ruling that has brought the company a step closer to paying record damages to the widow of a deceased smoker.

The California Supreme Court refused Wednesday to hear an appeal of a $55.4-million judgment against the top U.S. cigarette maker, a unit of Altria Group Inc. In June 2001, Philip Morris was found guilty of negligence and fraud in a lawsuit filed by Topanga resident Richard Boeken, a former Marlboro smoker then afflicted with lung cancer who died a few months later at 57.

Unless the U.S. high court agrees to intervene, Philip Morris will have to pay the judgment, plus at least $20 million in interest, to his widow, Judy Boeken.

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• Court Says Philip Morris Must Pay $50 Million 

Altria Group Inc.'s Philip Morris USA must pay $50 million to the family of a smoker who died of lung cancer, the California Supreme Court ruled, rejecting the company's request to reduce the punitive damage award.

The court declined requests by both the smoker's family and the company to review the award, which had been reduced from $3 billion to $100 million and then to $50 million. The court didn't give a reason for its decision.

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Calif Crt Reaffirms Decision To Cut Tobacco Damage Award 

A California state appeals court reaffirmed its decision to slash in half a $100 million damage award against Philip Morris Inc. by a smoker who later died of lung cancer.

A three-member panel of the 2nd District Court of Appeal on Friday issued its ruling, which also let stand $5.5 million in compensatory damages to Richard Boeken.

Boeken, a two-pack-a-day smoker since he was 13, died in 2002. He was 57. During his civil trial against Philip Morris, Boeken testified that he was the victim of a tobacco industry campaign that portrayed smoking as "cool" but concealed its dangers.

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• BOEKEN v. PHILIP MORRIS 

The United States Supreme Court has also provided three guideposts? for such review: (1) the degree or reprehensibility of the defendants misconduct, (2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.? . . .

The trial court, reviewing the motion for new trial pursuant to California and federal law, concluded that Philip Morriss conduct was in fact reprehensible in every sense of the word, both legal and moral.? We agree. . .

The very conduct that injured Boeken was directed at all smokers in the United States, repeated over many years with knowledge of the risk to human life and health, and is probative of intentional deceit. The national marketing of a defective product, knowing that ordinary consumers expect it to be less hazardous, knowing that thousands of people will die due to their addiction, is probative of a willful and conscious disregard of the danger to human life. (See State Farm, supra, 538 U.S. at pp. 423-424.) We find that a sufficient nexus has been shown here with Philip Morriss conduct in the other states, whether lawful or unlawful, to consider the evidence on the issue of reprehensibility. (See id. at p. 422.) . . .

We agree, however, that the MSA does provide Philip Morris with an incentive not to misrepresent the health risks of its products, and not to target underage smokers with its misrepresentations, since it prohibits it from doing so. On the other hand, it does not deter Philip Morris from adding flavorings and chemicals that make its product more addictive and easier to take into the lungs. It does nothing to deter Philip Morris from marketing defective light? cigarettes, knowing that they are more dangerous than the ordinary consumer expects. Given these other incentives and the final punitive damage award in Henley, we conclude that more than a single digit multiplier is not justified. But the extreme reprehensibility of increasing addictiveness by manipulating additives, gaining smokers by fraud, and marketing a product that is more dangerous than ordinary consumers expect, knowing that serious physical injury and death will result in many smokers, does justify a ratio of at least 9 to 1. We round off the figure at $50 million.

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• Court of Appeal Upholds Punitive Damage Award of $50 Million in Tobacco Case for Second Time 

The family of a man who died of lung cancer after more than four decades of smoking Marlboro cigarettes is entitled to $50 million in punitive damages, this district's Court of Appeal ruled Friday.

The amount is far less than the $3 billion--the largest jury verdict ever in favor of a single plaintiff, according to news accounts--awarded to Richard Boeken by a Los Angeles Superior Court jury in 2001. But the decision represents a rare defeat for Philip Morris, Inc., which persuaded the California Supreme Court to send the case back to Div. Four after its first decision.

Boeken testified that while he had conquered addictions to heroin, methadone and alcohol, his repeated attempts to quit smoking were unsuccessful. . . .

Boeken, represented by attorney Michael Piuze, said he believed the company's long-standing insistence that cigarettes are not addictive. Jurors agreed, awarding $3 billion in punitive damages and $5.5 million in back pay and general damages.

Judge Charles W. McCoy Jr. cut the award to $100 million, and the Court of Appeal cut that in half. But the same panel, which was instructed to reconsider its ruling in line with an intervening U.S. Supreme Court decision, said Friday that there was no need to cut the award further. . . .

"[T]he extreme reprehensibility of increasing addictiveness by manipulating additives, gaining smokers by fraud, and marketing a product that is more dangerous than ordinary consumers expect, knowing that serious physical injury and death will result in many smokers, does justify a ratio of at least 9 to 1," the justice wrote. "We round off the figure at $50 million."

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[T]he extreme reprehensibility of increasing addictiveness by manipulating additives, gaining smokers by fraud, and marketing a product that is more dangerous than ordinary consumers expect, knowing that serious physical injury and death will result in many smokers, does justify a ratio of at least 9 to 1. We round off the figure at $50 million.
California Supreme Court, in the Boeken appeal.

• Altria To Take $50 Million Boeken Ruling To Calif Supreme Court 

Altria Group Inc.'s (MO) Philip Morris USA unit said it will petition the California Supreme Court to review a Tuesday appeals court decision that cut its punitive damages on a tobacco lawsuit by half.

In a press release Wednesday, the tobacco company said the punitive damages on behalf of deceased smoker Richard Boeken are "still wildly excessive" based on the standard of a Supreme Court case that said punitive awards should not generally exceed the amount of compensatory awards.

"Fifty million dollars is less than four days profit for Philip Morris," plaintiff's lawyer Michael Piuze told the Associated Press after Tuesday's ruling. "It's a drop in the bucket. We will ask the California Supreme Court what it thinks."

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Award in Smoking Case Is Cut 

A California appeals court Tuesday upheld a jury verdict against Altria Group Inc.'s Philip Morris USA on behalf of a deceased smoker, but sliced the punitive damages award in half.

Philip Morris, the world's largest cigarette maker, won a second reduction to what was once a $3-billion jury verdict as the appeals court slashed the award to $50 million.

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Calif. Appeals Court Cuts Smoking Damages 

A California appeals court cut by half the $100 million in punitive damages awarded to the family of a man who sued tobacco giant Philip Morris USA Inc.

The 2nd District Court of Appeal on Tuesday affirmed the original judgment of $5.5 million in compensatory damages, but said the punitive damage award was excessive and lowered it to $50 million, if approved by the family of the plaintiff Richard Boeken and Philip Morris.

Plaintiff's attorney Michael Piuze said his client will not accept the appeal court's decision and plans to petition the California Supreme Court.

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• UPDATE 1-California court cuts Philip Morris smoker award 

California appeals court has ruled that a smoker's record-breaking $3 billion punitive damages award against Philip Morris was still "excessive" even after being reduced by a trial judge to $100 million and must be halved again.

The Second District Court of Appeal, a state court in Los Angeles, gave the estate of Richard Boeken the option of accepting the lowered amount of $50 million or going to trial again, according to an opinion published on Tuesday.

Philip Morris said in a statement that the company would appeal the decision to the California Supreme Court.

"The company believes that a $50 million punitive damages award for an individual smoker on top of more than $5 million in compensatory damages is still wildly excessive," William Ohlemeyer, Philip Morris USA vice president and general counsel said. . . .

"We are disappointed in the court's decision.... $50 million is less than four days' profit for Philip Morris," Piuze said. "This fine will not punish it or deter its future conduct that imperils the health and lives of our citizens."

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Philip Morris U.S.A. is Preparing to Vigorously Appeal Boeken Case 

By agreeing to the judge's reduction, plaintiff Richard Boeken has now cleared the way for the company to initiate its formal appeal of the entire verdict.

On August 9, Los Angeles County Superior Court Judge Charles W. McCoy denied the company's request to overturn the verdict and gave the plaintiff the option of either agreeing to the reduced punitive award or having the issue of punitive damages retried. He formally agreed to the judge's reduction this week, which sets the stage for the case to move to the appellate courts.

Company officials consider the $100 million award grossly excessive, and both unprecedented and unconstitutional under California and federal law. The company also pointed out that, as provided for under law, no payment would be made to Mr. Boeken during the course of the appeal, a process that often takes several years.

``We are optimistic that the appellate courts will conclude, after reviewing the record and the numerous prejudicial errors made by the trial Court, that Mr. Boeken is entitled to no damages. Our appeal will request a complete reversal and retrial on multiple grounds, not the least of which was the passion and prejudice the jury displayed in reaching its verdict,'' said William S. Ohlemeyer, Philip Morris vice president and associate general counsel.

Ohlemeyer noted that the additional grounds requiring reversal or a new trial include the Court's improper exclusion of evidence relating to Mr. Boeken's credibility, improper admission of evidence relating to the adequacy of the health warnings mandated by federal law and erroneous instruction of the jury on key issues.

``The Court compounded these legal errors by failing to set the verdict aside, or, at a minimum, reducing the punitive damage award enough to bring it in line with California and federal law,'' said Ohlemeyer.

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