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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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