Richard Boeken sued Philip Morris USA, Inc., alleging various theories including negligence, strict product liability and fraud resulting in personal injuries caused by his cigarette addiction. Boeken claims that he began smoking in 1957, when he was a minor; he smoked Marlboro and Marlboro Lights, both manufactured by Philip Morris; and he was ultimately diagnosed with lung cancer in 1999. A jury found that Philip Morris products consumed by Boeken were defective, resulting in injuries to Boeken. The jury also found liability based upon fraud by intentional misrepresentation, fraudulent concealment, false promise, and negligent misrepresentation, concluding that Boeken had justifiably relied upon fraudulent utterances and concealment by Philip Morris. The jury awarded $5,539,127 in compensatory damages and $3 billion in punitive damages. A Philip Morris motion for judgment notwithstanding the verdict was denied.
Philip Morris’ motion for a new trial was conditionally granted solely on the issue of punitive damages unless Boeken accepted a reduction in punitive damages to the sum of $100 million, in which case the motion would be denied. Boeken consented to the reduction. Philip Morris and Boeken each filed timely notices of appeal. The Court further reduced punitive damages to the amount of $50 million. Philip Morris and Boeken each filed petitions for rehearing, which were granted. The Court affirmed the judgment and order reducing damages, if Boeken accepts the remittitur. If he does not, the Court affirms the order of the trial court granting a new trial to Philip Morris on the issue of punitive damages.
Boeken v. Philip Morris Inc., 26 Cal.Rptr.3d 638, 127 Cal.App.4th 1640, California Court of Appeal (2005).
United States
Apr 1, 2005
California Court of Appeal, Second District, Division 4
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
A plaintiff’s liability may be limited where she has accepted the risks and consequences of her behavior. The tobacco industry may argue that the dangers of smoking are well known, so liability should be limited.
Type of Tobacco Product
None
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"Philip Morris contends that harm to others cannot be considered in a punitive damage analysis. But as we have previously explained, similar out-of-state conduct may be relevant to the issue of reprehensibility when it demonstrates the deliberateness and culpability of the acts committed in the state where they are tortious, so long as the conduct has a "nexus to the specific harm suffered by the plaintiff." (State Farm, supra, 538 U.S. at p. 422, 123 S.Ct. 1513.) Philip Morris contends that its conduct in other states consisted solely of lawfully selling cigarettes, and that it was not shown to be similar to that which injured Boeken, because there was no evidence that it caused any injury to specific persons in other states. We find nothing in State Farm that requires proof
of injury to specific persons other than the plaintiff, wherever they reside, when the conduct in question is
identical, as it was here, since the conduct that injured Boeken was not confined to California.
"`[R]epeated misconduct is more reprehensible than an individual instance of malfeasance'" and "`a recidivist may be punished more severely than a first offender,'" so long as "the conduct in question replicates the prior
transgressions." (State Farm, supra, 538 U.S. at p. 423, 123 S.Ct. 1513, quoting BMW, supra, 517 U.S. at
p. 577, 116 S.Ct. 1589.) 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, 123 S.Ct. 1513.) We find that a sufficient nexus has been shown here with Philip Morris's conduct in the other states, whether lawful or unlawful, to consider the evidence on the issue of reprehensibility. (See id. at p. 422, 123 S.Ct. 1513.) Having concluded that Philip Morris's conduct is "extremely reprehensible," as in Romo v. Ford Motor Co., supra, 113 Cal. App.4th 738, 6 Cal.Rptr.3d 793, and that there is sufficient evidence supporting all five reprehensibility factors under State Farm, a substantial punitive damage award was justified."
"We cannot agree with Philip Morris's suggestion that section 1714.45 makes its conduct less reprehensible on the ground that it provided immunity from liability for fraud and dangerous product under the facts of this case. Philip Morris added urea to make Marlboros more addictive, and flavorings to make it easier for the smoke to reach the lungs. Section 1714.45, as we have discussed, provided immunity only for unadulterated tobacco products. (See Naegele, supra, 28 Cal.4th at pp. 864-865, 123 Cal.Rptr.2d 61, 50 P.3d 769; Myers, supra, 28 Cal.4th at p. 837, 123 Cal.Rptr.2d 40, 50 P.3d 751.)The health risks of smoking may have been public knowledge for decades, but given the evidence of the false controversy created by Philip Morris, the adulterations added to the cigarettes, the nature of addiction, the fact that Boeken failed to understand and appreciate the risks of smoking, and Philip Morris's marketing of so-called light cigarettes, knowing that they are more dangerous than ordinary consumers expect, this argument fails. In addition to fraud, the evidence establishes that Philip Morris acted with a conscious disregard of consumer health and safety in the manufacture and marketing of a dangerous product, and intentionally took advantage of the consumer expectation that "light" cigarettes were safer. Philip Morris knew that there was no reason to believe Marlboro Lights or Ultralights were any safer than its Reds. Compensation has been described in scientific literature for 40 years and Philip Morris's own research found no reduction in tar delivery for Marlboro Lights over regular cigarettes, but Philip Morris has only just recently initiated a study of human smokers to measure how much tar they actually take in. And although Philip Morris's laboratories were "state of the art," its studies of biological activity, using actual cigarettes that it markets, did not begin until 1999 or 2000. Further demonstrating a conscious disregard for consumer safety, Philip Morris was still marketing "light" cigarettes at the time of trial, knowing that they may increase the risk of more serious cancers. And Philip Morris was still adding urea to Marlboro tobacco, causing more nicotine to be delivered more quickly to the smoker, as well as flavorings to create bronchodilators to open up the lungs."
"Utilizing the five factors listed in State Farm, all show a high degree of reprehensibility and weigh in favor of the jury's conclusion that a substantial punitive damage award was appropriate in this case. The evidence supports the conclusion that Boeken's injuries were caused by Philip Morris's fraud and defective product, and were physical, not merely economic. Philip Morris's conduct was repeated over a period of almost 50 years with an indifference to the health or safety of Boeken and others, and Boeken was physically and psychologically vulnerable, and eventually, economically vulnerable. Philip Morris manufactured a dangerous product, knowing that it was a dangerous product — one that caused addiction and disease — and it added chemicals to the product to make it more addictive and easier to draw into the lungs, thus making it more dangerous. At a young age, Boeken was drawn to the product and to the Marlboro brand with misleading advertising specifically targeted to male adolescents. He was kept smoking with misleading statements and falsehoods about smoking, disease, and addiction, the believability of which was enhanced by addiction; and Boeken's addiction was ensured by increasing Marlboro's nicotine delivery."
"On the news in 1994, Boeken saw portions of the testimony of tobacco company executives before Congress. They all denied that tobacco was addictive or harmful. They all denied under oath that it caused cancer. He knew they were lying, but at the time, he still believed them, because he did not think they would lie to the government under oath. Also in 1994, Boeken's mother, who smoked two packs a day until her death, died of lung cancer, and he had no more doubts about whether smoking caused cancer. It was much later that he learned for the first time that accelerants, additives, or chemicals were added to the tobacco in his cigarettes, in order to increase their addictiveness. Even then, Boeken was still unable to quit. In October 1999 he was diagnosed with lung cancer and underwent extremely painful surgery to remove the upper part of a lung, and then he began chemotherapy. By that time, however, the cancer had spread to his lymph nodes, and his chance of surviving the disease was less than one percent. Within a year, the cancer had spread to his brain, and there was no chance of survival. Boeken stopped smoking just before the surgery to remove part of his lung, but started taking an occasional puff or two after the first round of chemotherapy was over, because it calmed him. But he was shattered when he was diagnosed with brain cancer, and felt he needed more, so he bought a pack of Marlboro "Reds", and was soon smoking two or three packs a day. Boeken testified that if Philip Morris had made it clear to him in the 1960s, the 1970s, or even the 1980s, that cigarettes cause lung cancer and death, he would not have smoked. At least, he thought he would have made an "honest effort" to quit. He also felt that if Philip Morris had admitted in the 1960s or 1970s, not only that smoking caused lung cancer but also that Philip Morris added ingredients to Marlboro cigarettes in order to increase their addictiveness, he would have stopped smoking Marlboros."
"Over the years, another brand's ad campaign occasionally caught Boeken's attention, and he tried it for a few days, but always returned to Marlboros, although he was not sure exactly why. He knew he liked the taste better than other cigarettes — they were smoother, yet stronger. Thus, Boeken started smoking Marlboros as a child for reasons that track Philip Morris's advertising of the time, and he remembered their themes with fair certainty, as well as how they enticed him to smoke with false images of health, sophistication, and machismo. "Substantial evidence means such evidence as a reasonable fact trier might accept as adequate to support a conclusion; evidence which has ponderable legal significance, which is reasonable in nature, credible and of solid value. [Citations.]" (Guntert v. City of Stockton (1976),55 Cal. App.3d 131, 126 Cal.Rptr. 690.) We conclude that the foregoing evidence supports the jury's conclusion that Boeken relied upon advertising by Philip Morris."
"The jury found against Philip Morris on the fraud claims of intentional misrepresentation, concealment, false promise, and negligent misrepresentation. Philip Morris challenges only the evidence of its duty to disclose and of Boeken's reliance, not the evidence establishing that it made misrepresentations, made misleading statements and concealed the facts that would have clarified them, or that it made a false promise, all with an intent to defraud. Indeed, claiming such evidence is irrelevant to the argument regarding Boeken's reliance, Philip Morris does not summarize most of the large volume of evidence showing that it was aware of the health hazards and addictive nature of its tobacco products, or that it undertook a campaign to disseminate falsehoods about smoking and health, and to conceal the truth from the public, including Marlboro smokers such as Boeken, in order to mislead them into believing that their cigarettes were safe and not addictive."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Richard Boeken sued Philip Morris USA, Inc., alleging various theories including negligence, strict product liability and fraud resulting in personal injuries caused by his cigarette addiction. Boeken claims that he began smoking in 1957, when he was a minor; he smoked Marlboro and Marlboro Lights, both manufactured by Philip Morris; and he was ultimately diagnosed with lung cancer in 1999. A jury found that Philip Morris products consumed by Boeken were defective, resulting in injuries to Boeken. The jury also found liability based upon fraud by intentional misrepresentation, fraudulent concealment, false promise, and negligent misrepresentation, concluding that Boeken had justifiably relied upon fraudulent utterances and concealment by Philip Morris. The jury awarded $5,539,127 in compensatory damages and $3 billion in punitive damages. A Philip Morris motion for judgment notwithstanding the verdict was denied.
Philip Morris’ motion for a new trial was conditionally granted solely on the issue of punitive damages unless Boeken accepted a reduction in punitive damages to the sum of $100 million, in which case the motion would be denied. Boeken consented to the reduction. Philip Morris and Boeken each filed timely notices of appeal. The Court further reduced punitive damages to the amount of $50 million. Philip Morris and Boeken each filed petitions for rehearing, which were granted. The Court affirmed the judgment and order reducing damages, if Boeken accepts the remittitur. If he does not, the Court affirms the order of the trial court granting a new trial to Philip Morris on the issue of punitive damages.