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Boeken v. Philip Morris Inc.

(Personal Injury US Sup. Ct. 2001 Pltf Paid) Citation: 127 Cal.App.4th 1640 (1 April 2005)

This individual personal injury suit was filed by Richard Boeken, succeeded by his widow Judy Boeken, against Philip Morris on March 16, 2000.
The plaintiff alleged that his personal injuries were caused by his cigarette addiction begun when he was a minor. He began smoking in 1957 at age 13, and smoked two packs per day of Marlboro Reds (1957-late 70s), Golds (late 70s- mid 80s), Lights (mid 80s - 90s), and Ultra Lights (90s-1999). He was diagnosed with lung cancer in 1999. The cancer spread to his brain. The plaintiff claimed product defect in the form of defective design and failure to warn, negligence, fraud by intentional and negligent misrepresentation, concealment, breach of express warranty, conspiracy, and false promise. The plaintiff sought compensatory and punitive damages.
The defendants argued preemption under the Federal Cigarette Labeling and Advertising Act, common knowledge, adequate warning, and assumption of risk.
The case was heard in the Superior Court of the State of California for the County of Los Angeles (No. BC226593)before the Honorable Charles W. McCoy, Jr. The trial began on April 2, 2001 and lasted 31 days. The jury returned a verdict for the plaintiff on June 6, 2001 consisting of $5,539,127 in compensatory damages and $3 billion in punitive damages. The judge reduced the punitive damages to $100 million on September 5, 2001. Both parties appealed.
Richard Boeken died in January, 2002, at age 57. His widow and son continued the case.
The Court of Appeal of the State of California, Second Appellate District, Division Four (No. B152959) affirmed the verdict but reduced the punitive damages to $50 million on September 21, 2004 and again following a rehearing (127 Cal.App.4th 1640) on April 1, 2005. The court held the evidence was sufficient to demonstrate reliance on the defendant's fraudulent statements. There was substantial evidence to support the finding that "light" cigarettes were a defective product. Statutory immunity only extended to "unadulterated" consumer products. The plaintiff was entitled to argue youth targetted advertising to the jury. The trial court rightfully dismissed a juror for failing to deliberate. In light of the defendant's reprehensible conduct, punitive damages equal to nine times the compensatory award ($50 million) was not excessive.
The Califonia Supreme Court denied both parties' petitions for review on August 10, 2005. The U.S. Supreme Court denied certiorari to each party on March 20, 2006.
Philip Morris paid $82 million including interest to the plaintiff.
In June, 2006, Judy Boeken (widow) and Richard Boeken (son) filed a wrongful death suit against Philip Morris. The plaintiffs alleged that most of the issues had been decided in the first suit, and they only had to prove that Mr. Boeken died of lung cancer. Prior to his death, the disease had spread to his spine and brain.
The defendant argued that all the issues would have to be retried.
The second case was heard in the Superior Court of the State of California for the County of Los Angeles, before the Honorable David L. Minning. In February, the judge granted the defendant's motion to dismiss Judy Boeken's claim, leaving only Dylan Boeken. On April 24, 2007, the judge ruled for the plaintiffs on which issues had to be determined. The case is set for trial January 7, 2008.