Boeken Press Coverage

Boeken v Philip Morris

San Francisco Chronicle, March 20, 2006

Bob Egelko, Staff Writer

WASHINGTON – The widow of a California man who died of lung cancer after smoking two packs of cigarettes a day of 40 years is entitled to $50 million in punitive damages, the largest such award ever upheld for an individual smoker, the U.S. Supreme Court decided today.

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.

Boeken, who died in 2002 at age 57, is one of a handful of Californians who have won damages under a 1998 law that allowed individuals to sue tobacco companies for making misleading or fraudulent claims in marketing a dangerous product. The tobacco industry had been protected from such suits by state law for the previous decade.

The case’s status as the largest-ever damages award upheld on appeal against the tobacco industry could be short-lived. The Supreme Court is also considering Philip Morris’ appeal of a $79.5 million punitive damage award to the family of a dead smoker that the Oregon Supreme Court upheld last month.

In addition, the company recently paid $9 million in punitive damages and $1.5 million in compensation to another plaintiff, Patricia Henley, a Glendale resident whose case was tried in San Francisco. Her cancer is in remission.

Boeken testified that he started smoking Philip Morris-produced Marlboros at 13 — before cigarette packages carried mandatory warning labels — and later switched to Marlboro Lights, believing they were safer. After trying many times to quit, he stopped smoking when he was diagnosed with lung cancer in 1999, but started again after learning that the cancer had spread to his brain.

Philip Morris argued that Boeken had been well aware of the risks of smoking, but a Los Angeles jury found in 2001 that the company had hidden and misrepresented the dangers and addictive nature of its product. The jury awarded Boeken $5.5 million for economic loss and emotional harm and $3 billion in punitive damages.

The trial judge later cut the punitive award to $100 million, and a state appeals court cut it to $50 million. The appellate decision relied on a U.S. Supreme Court ruling in 2003 that placed new restrictions on punitive damages awarded for a defendant’s fraudulent or malicious conduct.

The high court said such damages may violate a defendant’s property rights if disproportionate to the harm suffered by the plaintiff. The court prescribed some general limits: Damage awards should total no more than 10 times the amount of compensation in most cases, and the ratio should be smaller when compensation for actual losses is substantial.

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.

Lawyers for Boeken’s widow, Judy, filed their own appeal, asking the Supreme Court to rule that the 10-1 limit does not apply to cases of reprehensible conduct. The justices denied that appeal as well.

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.

Philip Morris USA, based in Richmond, Va., said today that the court’s denial “does not speak to the legal merits of these cases.’ It noted that it had won the last five smoker lawsuits decided in California courts.

The future of such lawsuits is in doubt, at least in California. The state Supreme Court has agreed to decide whether smokers can sue after being diagnosed with tobacco-related illnesses or must file their claims earlier, within a year after realizing they were addicted. Tobacco companies are arguing for the earlier deadline, which would require dismissal of most such cases now in court. The cases are Philip Morris vs. Boeken, 05-594, and Boeken vs. Philip Morris, 05-600. E-mail Bob Egelko at