Tobacco.org

Attorney asking for $22 million in wrongful death case against Philip Morris 

The son of a man who died of lung cancer from smoking Marlboro cigarettes is entitled to $22.2 million from Philip Morris USA Inc., an attorney told a jury Monday during closing arguments in the 19-year-old's wrongful death case.

The figure recommended by lawyer Michael Piuze on behalf of Dylan Boeken represents $1 million a year for the 22.2 additional years the plaintiff's father, Richard Boeken, could have expected to live had he not died of his illness in January 2002 at age 57.

His son, who was 10 at the time, is claiming damages for loss of his father's love, affection, guidance and training.

Mixing his presentation with silent moments showing the jury a montage of Boeken family photos, along with his own singing of a portion of the 1960s song "What the World Needs Now is Love," Piuze said Richard Boeken's unselfishness and dedication to helping others left an imprint on his only child.

Jump to full article »

• Jury orders Philip Morris USA Inc. to pay $12.8 million to son for father’s lung cancer death 

A jury Tuesday ordered Philip Morris USA Inc. to pay $12.8 million to the 19-year-old son of a man who died of lung cancer from smoking Marlboro cigarettes.

A Los Angeles Superior Court panel deliberated for about a day before finding 9-3 in favor of Dylan Boeken. The verdict comes a decade after his father, Richard Boeken, won a $3 billion award against the tobacco giant. He died seven months later of lung cancer.

His son, who was 10 at the time of his father's death, sought damages for loss of his father's love, affection, guidance and training. He is now in college.

Boeken's attorney, Michael Piuze, said that interest on the judgment could eventually bring the award to $19.2 million.

"The Boeken family has been involved in litigation since 1999," Piuze said. "We don't believe this is the end, but we hope someday it will come to an end."

Piuze was referring to his anticipation of an appeal by Philip Morris. . . .

Attorney Frank Kelly III, on behalf of Philip Morris, countered that any award should be limited to $500,000. He said Dylan Boeken has been a good student and citizen despite his father's premature death.

"Dylan didn't lose what Rick had given him," Kelly said. "He accepted it and built upon it. I think the evidence shows the gifts he was given … didn't just disappear."

Jump to full article »

California court says woman can't sue Philip Morris again  

The widow already had received more than $80 million from Philip Morris USA as payment for causing her late husband's cancer -- but when she sued again, the California Supreme Court said no.

The ruling yesterday means Judy Boeken can't proceed with a wrongful death case against the Henrico County-based cigarette-maker.

Boeken received $80 million in damages and interest in 2006, after pursuing Richard Boeken's 2000 case through California appellate courts. . . .

While his case was working its way through the courts, Judy Boeken also sued Philip Morris, for causing her the loss of her husband's companionship and affection.

But four months later that case was dismissed with prejudice, which means that it could not be refiled.

Jump to full article »

California High Court Blocks Philip Morris Wrongful Death Suit  

Philip Morris USA can’t be sued for wrongful death by the widow of a smoker whose earlier case for loss of consortium had been thrown out, the California Supreme Court ruled today.

Jump to full article »

• BOEKEN v. PHILIP MORRIS, et. al. (PDF) 

After plaintiff‟s husband, a cigarette smoker, was diagnosed with lung cancer, plaintiff filed a common law action for loss of consortium against defendant cigarette manufacturer, seeking compensation for the “permanent[]” loss of her husband‟s companionship and affection. That action was dismissed with prejudice. Then, after her husband‟s death from the lung cancer, plaintiff brought the current wrongful death action against defendant, again seeking compensation for the loss of her husband‟s companionship and affection.

The doctrine of res judicata prohibits a second suit between the same parties on the same cause of action. In this context, the term “cause of action” is defined in terms of a primary right and a breach of the corresponding duty; the primary right and the breach together constitute the cause of action. We conclude that plaintiff‟s wrongful death action involves the same primary right and breach as her former loss of consortium action, and that therefore the doctrine of res judicata bars plaintiff‟s wrongful death action. We affirm the judgment of the Court of Appeal. . . .

In the present case, plaintiff, understandably unable to anticipate the rule the majority announces today, apparently did not believe that her voluntary dismissal of her loss of consortium claim would bar a wrongful death claim. After today, those who seek to resolve a common law loss of consortium claim but do not wish to preclude litigation of a wrongful death claim will not use a voluntary dismissal with prejudice as a vehicle for doing so. Such is the sole practical effect of the majority opinion other than the resolution of the present case. If, however, the rule I propose were adopted, then those who dismiss their common law loss of consortium claims would still be able to use voluntary dismissals with prejudice as a means of doing so, and courts would look to accompanying settlement agreements to determine precisely the extent to which the parties were also relinquishing wrongful death claims.

Jump to full article »

State courts rule on punitives ($$) 

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 ...

Jump to full article »

• BOEKEN v. PHILIP MORRIS (PDF) 

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.

20

DISPOSITION

The judgment is affirmed. Philip Morris is to recover its costs on appeal.

• Judge Rules In Favor Of Ex-Smoker's Son Against Philip Morris  

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.

Jump to full article »

• Judge Ponders Wrongful Death Case by Son of Ex-Smoker 

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.

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.

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.

Jump to full article »

UNGER: Who bears more responsibility: self or company? 

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.

Jump to full article »

Philip Morris Loses High Court Appeal Of $50 Million Calif. Award 

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.

Jump to full article »

High court lets $50 million tobacco award stand 

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.

Jump to full article »

Statement by American Legacy Foundation President and CEO Cheryl Healton, Dr. P.H. on U.S. Supreme Court Decision Recognizing Deadly Toll of Tobacco 

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.

Jump to full article »

ASH PR: Supreme Court OKs Large Punitive Damages for Smokers 

"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.

Jump to full article »

SULLUM: Only $50 Million 

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. . . .

Jump to full article »