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From the time Richard Boeken was a teen-ager, he was a Marlboro Man. It was a cigarette that gave him the kind of image that he craved, says his attorney, Michael J. Piuze of Los Angeles’ Law Offices of Michael J. Piuze. For teen-age boys in California, “smoking Marlboros was a really big deal in the late 1950s,” Piuze says. “It gave them style, substance.” Boeken began smoking in 1957 at the age of 13, and he smoked two packs of Marlboros a day for more than 40 years. He tried to quit several times, never successfully. Instead he switched to “lighter” forms of his favorite brand. “He went from Marlboro Reds to Marlboro Golds to Marlboro Lights to Marlboro Ultra Lights, believing the lower-tar cigarettes were less harmful,” Piuze says. In October 1999, Boeken was diagnosed with lung cancer and underwent surgery, radiation and chemotherapy. He quit smoking then, Piuze adds. But he soon returned. In the summer of 2000, “he started sneaking a couple. When he learned it had metastasized, he smoked some more.” Then, Piuze reports, “when he learned it had spread to his brain, he bought a carton. He figured he had nothing left to lose.” In March 2000, Boeken sued Philip Morris Inc., manufacturer of Marlboros, charging product defects, negligence and fraud. That lawsuit would lead to a $3 billion verdict — the largest jury verdict of 2001 and the largest ever to a single plaintiff in a tobacco case. Boeken v. Philip Morris Inc., No. BC 226593 (Los Angeles Co., Calif., Super. Ct.). The jury award was one of 18 in the year 2001 of $100 million or more, down from a record 27 the year before. While there was a decline in the highest jury awards in 2001, there were still nearly 100 verdicts of $20 million or more and nearly 200 verdicts of $10 million or above. AWARD REDUCED While Boeken v. Philip Morris was the largest award of the year, it may also be one of the most precarious. The award has already been cut back to $105.5 million, and both sides are awaiting a decision by the California Supreme Court that could erase it and two other recent trial victories against the industry. A California law in effect from 1988 to 1998 had barred plaintiffs from bringing products liability claims against the industry. Philip Morris contends that Boeken’s claim is precluded by this law. The plaintiff contends it has no effect. In this suit, as in most recent cases against the tobacco industry, the plaintiff was claiming more than product defects. Boeken was also charging fraudulent concealment, civil conspiracy, false representation and deceit, as well as false and misleading advertising. The plaintiff contended that Philip Morris marketed a product that it knew to be unsafe, failed to disclose information known about the addictive and harmful effects of smoking and misled the American public by claiming there was a controversy in the scientific community on the subject of smoker health when there was no such controversy. Several scientific studies had established by the early 1950s that there was a causal relationship between cigarette smoking and lung cancer, Piuze says. But long afterward, he charges, Philip Morris, along with the rest of the tobacco industry, denied this relationship or somehow cast doubt on it. The plaintiff contended that this was fraud and that this fraud continued through the 1990s. The plaintiff also alleged that Philip Morris misled the public by marketing light cigarettes as less harmful than full-strength cigarettes. “So-called light cigarettes are not less harmful,” Piuze says. “The government of the United States and the tobacco industry always knew that.” Smokers, in order to get the full amount of nicotine desired, or needed, would suck harder on a light cigarette, he contends. Boeken switched to lighter forms of Marlboro, thinking they were safer, Piuze says, but this “compensation” factor meant he was still getting the same amounts of carcinogens. In developing his case against Philip Morris, Piuze built on the work of other attorneys who have sued the industry, such as Madelyn J. Chaber of San Francisco’s Wartnick, Chaber, Harowitz & Tigerman. He had access to internal documents of the tobacco industry, gained by plaintiffs’ attorneys from individual lawsuits and the states’ litigation against the industry. He used these documents to establish his theme, that Philip Morris had committed fraud, in league with the other tobacco companies. He began the trial with Dr. Richard Doll, an 88-year-old Briton, who had conducted some of the definitive experiments after World War II on the health risks of smoking. “Doll was one of the four original doctors who found a link between smoking and lung cancer,” Piuze says. With Doll, he says, he attempted to show the jury that by the early 1950s, the medical and scientific community were in agreement that smoking causes lung cancer. CHEMIST WAS WITNESS But a former employee of Philip Morris, chemist William Farone, would prove to be one of the more effective witnesses for the plaintiff, Piuze notes. One of the plaintiff’s claims against Philip Morris was that it could and should have made a safer cigarette. Philip Morris had begun to develop a safer cigarette, called Cambridge, which, when tested for tar, “got a .00 tar reading on government machines. In theory there were no carcinogens in it,” Piuze says. “But Philip Morris abandoned the project.” Philip Morris contended that the project was dropped because of significant problems with the cigarette. The plaintiff brought on Farone, who disputed this claim. Throughout the presentation, Piuze would cite documents produced by the tobacco industry. Excerpts from the most significant, from the plaintiff’s point of view, were placed on a 10-foot-long timeline that appeared in front of the jury during most of the plaintiff’s case. THE ‘DAMNING’ DOCUMENT But, says Piuze, “the single most damning document came in 1972.” This was an internal memo discussing the industry’s response to the charges of health risks caused by cigarettes. The memo says: “For nearly twenty years, this industry has employed a single strategy to defend itself on three major fronts — litigation, political and public opinion.” It describes as an integral part of that strategy “creating doubt about the health charge without actually denying it.” Philip Morris could call most of the actions of the company in the 1950s and up to the 1990s irrelevant if there was no evidence the alleged fraudulent behavior had continued. But, Piuze says, there would be no statute of limitations on fraud if the company had continued to make false statements knowingly. The plaintiffs used later documents as evidence of an ongoing fraud, including the statement before Congress by then-CEO William Campbell in 1994: “To my knowledge, it has not been proven that cigarette smoking causes cancer.” Piuze used the history of the tobacco industry for his primary proof, but the history of his client would prove a major obstacle. He “was a child of the ’60s,” Piuze notes. This included playing in a rock band and experimenting with drugs. “He had dabbled in heroin, but got scared after three months,” Piuze says. Boeken then went onto methadone, which he took for three years before kicking the habit. As a young man, Piuze adds, Boeken had an alcohol problem. He quit drinking as well. By the time of trial, he says, “he had been clean and sober since 1976.” To the defense, this record of prior drug use fit into a major theme — that Boeken knew that cigarette smoking could be hazardous to his health but began smoking and continued to smoke because he was a risk-taker. Piuze, however, turned Boeken’s other addictions into a point for the plaintiff — that nothing is more addictive than nicotine. THE JURY AWARD On June 6, 2001, a Los Angeles jury awarded Boeken $2.29 million in economic damages, $3.25 million in noneconomic damages and $3 billion in punitives. Philip Morris filed post-trial motions to set aside or reduce the verdict. The verdict was not supported by the evidence, says Steven Rissman, Philip Morris associate general counsel. “Mr. Boeken was unable to point to any statement that he relied upon, to his detriment. To prevail on a fraud claim, you have to identify and show justifiable reliance.” This would have been impossible, he maintains, given the ubiquitous publicity about the dangers of smoking cigarettes throughout the years that he smoked. To fight the punitive judgment, the company hired Kenneth Starr of the Washington, D.C., office of Chicago’s Kirkland & Ellis. “We argued that this was grossly excessive,” Starr says. And this argument would prove successful, for on Aug. 9, Judge Charles McCoy knocked the punitives down to $100 million. But he turned down the company’s request for further relief, calling the behavior of Philip Morris “reprehensible in every sense of the word” and terming the remaining $100 million punitive award “reasonable.” Philip Morris is appealing. One thrust of its appeal is the contention that the lawsuit should never have been allowed to go forward in the first place. In 1988, the California Legislature had prohibited smokers from filing products liability actions against tobacco companies. This law was repealed so the California attorney general could join the lawsuit against the tobacco industry. But the tobacco industry maintains that these individuals, including Boeken, are still blocked because the repeal was not retroactive. Whatever the California Supreme Court ruling, it will come too late for Richard Boeken. He died Jan. 16. The cause of death was cancer.

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