The son of a smoker who won a $3 billion jury verdict against Philip Morris USA Inc. in 2001 is entitled to an additional $12.8 million for the loss of his father’s relationship, an intermediate California appeals court has ruled.
Richard Boeken died of lung cancer in 2002 while Philip Morris was appealing a Los Angeles jury’s award granting him $3 billion in punitive damages and $5.5 million in compensatory damages — at the time the largest verdict to date in million a smoker case.
That verdict was later reduced to $50 million. His son, Dylan Boeken, in a subsequent wrongful death suit against Philip Morris, alleged he was deprived of his father’s consortium in the years leading to his death. A jury awarded $12.8 million on that claim in 2011.
On appeal, Philip Morris insisted that the jury had been erroneously instructed on damages under California law. The company also cited the California Supreme Court’s 1922 decision in Blackwell v. American Film as preventing such a double recovery.
But the Second District Court of Appeal, in a Tuesday opinion, found that Philip Morris misinterpreted Blackwell, which pertained only to economic damages, not those for loss of consortium.
“According to Philip Morris, had Richard lived without lung cancer, but been killed instantly by some other tortious means, Dylan would have been entitled to recover against the tortfeasor; but because Richard died a long, agonizing death caused by Philip Morris, Dylan is entitled to no recovery,” the appeals court wrote.
“Or, as argued by Dylan, under Philip Morris’s contention, if two people are hit in a crosswalk by an automobile and one is killed instantly and the other dies in a week from severe injuries, the child of the first accident victim would be entitled to loss of consortium damages but the child of the second accident victim would not.”
Philip Morris attorneys Patrick Gregory, a partner at Shook, Hardy & Bacon in San Francisco, and Daniel Collins of Munger Tolles & Olson in Los Angeles did not return calls for comment. Brian May, a spokesman for Altria Group Inc., the parent corporation of Philip Morris, declined to comment.
Neither Michael Piuze of the Law Offices of Michael J. Piuze in Los Angeles nor Stuart Esner of Esner, Chang & Boyer in Pasadena returned calls for comment on behalf of Dylan Boeken.
In Richard Boeken’s case, the jury found that Philip Morris failed to warn him about the health dangers of smoking when he took up the habit as a teenager in 1969. The jury also found fraud and negligence by Philip Morris.
The $3 billion verdict was reduced twice — first by a Los Angeles County Superior Court judge to $100 million, and then by a California appeals court to $50 million.
Following Richard Boeken’s death, his widow, Judy Boeken, filed a wrongful death action against Philip Morris on behalf of herself and Dylan. The California Supreme Court found in 2010 that her prior dismissal of loss of consortium claims in Richard Boeken’s case precluded her from raising loss of companionship and affection in the wrongful death case.
In arguing that Dylan Boeken was not entitled to damages, Philip Morris cited Blackwell, in which the state high court found that “where the defendant has already been required to fully compensate the decedent for the harm of reducing him from his pre-injury healthy condition to his pre-death diminished condition, his heirs cannot collect a second time for that reduction in the decedent’s condition in a wrongful death case.”
The Second District disagreed with that interpretation and cited the California Supreme Court’s Krouse v. Graham decision in 1977, in which the court found that damages for mental and emotional distress, including grief and sorrow, were prohibited in wrongful death actions, but that loss of consortium was not.
“The services of children, elderly parents, or nonworking spouses often do not result in measurable net income to the family unit, yet unquestionably the death of such a person represents a substantial ‘injury’ to the family unit for which just compensation should be paid,” the appeals court held, quoting Krouse.
In an unpublished portion of the opinion, the appeals court rejected Philip Morris’ claims concerning the jury’s instruction on what is recoverable under California’s wrongful death laws and the application of collateral estoppel.
The appeals court also rejected Dylan Boeken’s argument that he was entitled to pre-judgment interest because the jury award exceeded his previous offer to Philip Morris. Before trial, he offered to settle for $4.95 million, but Philip Morris refused. The appeals court found that the offer was invalid because Philip Morris did not sign the acceptance provision as required under California’s Code of Civil Procedure Section 998.
Amanda Bronstad is a reporter with The National Law Journal, a Recorder affiliate.