[Virginia GASP]    Victories over Philip Morris -- Reynolds!
            Patricia Henley,
            Richard Boeken,
            Betty Bullock,
            Jesse Williams -- January 31, 2008 decision!
             Leslie Whiteley -- another victory, October 15, 2009
 & loved ones defeated the nicotine cartel!

Overview:
Updated October 18, 2009
OVERVIEW:

*Patricia Henley case:
"This is a good day for the children," said [Patricia] Henley, who had long complained that her case would never end. "This is punishment money from the tobacco industry, but it needs to be turned into money that's going to help people."

"There was a sweetener that killed one rat, and they took it off the market," she said. "But they continue to sell this product that is proven to kill people. Where does that make any sense?"

To donate to or get involved with the Patricia Henley Foundation, e-mail lindalaurie@cox.net <mailto:lindalaurie@cox.net> .

"At long last, Philip Morris will have to pay Patricia Henley because of its history of lies, fraud and other corporate wrongdoing," said Edward L. Sweda Jr., senior attorney for the Tobacco Products Liability Project, a Boston-based group that promotes litigation against cigarette makers.

*Richard Boeken case:
July, 2007:  Judge David L. Minning ruled against Philip Morris, which had wanted a complete trial on all issues.
The judge said, "This court concludes that (Philip Morris) has not demonstrated that relitigation of issues, other than issues of causation and damages, is appropriate in this case."  The court case of Dylan Boeken, 15 year old son of Richard Boeken, is scheduled for January 7, 2008.  [Excerpts of a media article are given below.]

March 20, 2006:  The US Supreme Court refused to hear an appeal from Philip Morris of the punitive damages award against them.  The lead paragraph from The Los Angeles Times, March 21, 2006, is below, and further excerpts from it and other media are on this page under Boeken case.
"Five years after a landmark defeat in a Los Angeles courtroom, tobacco giant Philip Morris USA has exhausted its appeals and will have to pay record damages of more than $82 million to the widow of a longtime smoker of its Marlboro cigarettes." ...

"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 demonstrated "intentional deceit," the state appeals court ruled last year.

2005:  "The California Supreme Court refused Wednesday [2005] to hear an appeal of a $55.4-million judgment against the top U.S. cigarette maker, a unit of Altria Group Inc. In June 2001, Philip Morris was found guilty of negligence and fraud in a lawsuit filed by Topanga resident Richard Boeken, a former Marlboro smoker then afflicted with lung cancer who died a few months later at 57."

       *Jesse Williams case,
2008 -- January 31, 2008:  the Oregon Supreme Court upheld the jury's $79.5 million punitive damages award against Philip Morris.

                February 2, 2006:  Oregon Supreme Court and in February 20, 2007, the US Supreme Court
"In an opinion expressing contempt for the lethal business practices of Philip Morris, the Oregon Supreme Court today [February 2, 2006] affirmed an appeals court ruling restoring a 1999 punitive damages award of $79.5 million in the lung cancer wrongful death trial of Jesse Williams."

February 20, 2007, the US Supreme Court in a 5-4 decision overturned the punitive damages award, but did not address the size of the award or adversely affect punitive damages as a function of the civil justice system.  More on this below.

*Betty Bullock case:
April 21, 2006:  The Court of Appeal of the State of California, Second Appellate District, Division Three, upheld a $28 million punitive damages award in the case of Bullock v. Philip Morris USA, Inc.  The Court of Appeal concluded "that the refusal of Philip Morris's proposed jury instructions on punitive damages was proper" and also held that "the extreme reprehensibility of Philip Morris's conduct justifies a ratio of punitive damages to compensatory damages significantly greater than a single-digit."  In 2002, a Los Angeles jury returned a verdict for the plaintiff in the amount of $850,000 in compensatory damages and $28 billion in punitive damages.  The trial judge later lowered the punitive damages award to $28 million.  [From Statement of Edward L. Sweda, Jr., Senior Attorney, Tobacco Products Liability Project, April 21, 2006]

*Leslie Whiteley case:
October 15, 2009:  Appeals Court Upholds California Jury’s Multi-Million Dollar Verdict against R.J. Reynolds and Philip Morris
May 3, 2007:  For the second time in about seven years, a San Francisco jury has found two major tobacco companies liable for damages related to Leslie Whitely's habit of smoking cigarettes [Whiteley v. Philip Morris].
Betty Bullock case:
EXCERPTS from The San Francisco Chronicle, April 21, 2006, headlined, Appeals court upholds damages against Philip Morris, writer Bob Egelko.
A state appeals court today upheld $28 million in punitive damages against Philip Morris in a suit by a woman who smoked the company's cigarettes for 45 years and died of lung cancer in 2003.

The high court [U.S. Supreme Court], in a 2003 ruling, set out a 9-1 ceiling for punitive damages -- that is, nine times the amount of compensation that was awarded for the plaintiff's actual losses -- and said punitive awards significantly above that ratio would violate a defendant's property rights in most cases.  But in today's 2-1 ruling, the Court of Appeal panel in Los Angeles said the punitive damages awarded to Bullock's family, 33 times the amount of compensation, were justified by Philip Morris' "extremely reprehensible" conduct.

The company, along with others in the industry, worked for decades, the court majority said, to conceal the deadly nature of its products, manipulated their ingredients to make them more addictive, and pitched its advertising campaign at young people like Bullock, who was 17 when she started smoking.  The justices also said a large punitive award may be needed to have a deterrent effect on a company as big and profitable as Philip Morris, whose lawyer acknowledged during the trial that it could afford to pay $6 billion in punitive damages.

Jesse Williams case
January 31, 2008, the Oregon Supreme Court upheld the jury's $79.5 million punitive damages award against Philip Morris.

The Oregon Supreme Court decision is at http://www.publications.ojd.state.or.us/S051805.htm

EXCERPTS from Associated Press, January 31, 2008, "Oregon High Court Reaffirms Decision to Award Nearly $80M in Damages in Philip Morris Case", Writer, Tim Fought, assistance from Sarah Skidmore.    
The Oregon Supreme Court for a third time has allowed a $79.5 million punitive-damages judgment against Philip Morris, an award twice struck down by the U.S. Supreme Court, which suggested it was excessive.

A jury in Portland made the award in 1999 to the family of Jesse Williams, a former Portland janitor who started smoking during a 1950s Army hitch and died in 1997 six months after he was diagnosed with lung cancer.

The Oregon high court said Thursday that jury instructions proposed by Philip Morris at the trial had defects, so the judge was correct to bar them.

Thursday's decision likely lobs the case back to the nation's high court, lawyers said. Business groups have watched the case closely for its potential as a precedent for large jury awards in product liability cases.

The Oregon court's decision did not take issue with the U.S. Supreme Court's latest ruling on the case. That decision said a jury awarding punitive damages may punish a defendant only for the harm done to the person who is suing, not to others who might have been harmed, but weren't involved in the case.

The instructions about punitive damages have been at the center of the legal battle over the suit brought by Williams' widow, Mayola.

The Oregon high court made its first decision in 2002, refusing to hear an appeal from Philip Morris.

Then the U.S. Supreme Court rejected the judgment of nearly $80 million, saying that punitive damages should be held to no more than nine times actual economic damages. It declined, however, to make that a hard and fast rule.

In the Williams case, the family was awarded $521,000 in actual damages. The punitive damages were about 150 times greater.

Next, the Oregon Supreme Court upheld the punitive damages, citing "extraordinarily reprehensible" conduct on the part of Philip Morris officials.

The Oregon court said Thursday that Philip Morris and the tobacco industry worked during the 1950s on a "program of disinformation" to create doubt about the dangers of smoking. Williams, the court said, "learned from watching television that smoking did not cause lung cancer," but, once he came down with it, said the "cigarette people" had lied to him.

Then came the U.S. Supreme Court's second take on the case, last year, a narrower ruling that did not address the size of the award but only how juries could consider the conduct of defendants in determining punitive damages.

A lawyer on the family's side, James Coon of Portland , said the Oregon court's decision was right to focus on whether the jury instructions were correct under Oregon law. It is a threshold question that has to be answered before the courts consider whether the damages are unconstitutionally large, he said.

The Oregon court said that, for example, the jury instructions Philip Morris suggested would have forbidden the jury to consider the profits the tobacco company made through misconduct that was not illegal.

Edward Sweda Jr. of the Tobacco Products Liability Project at Northeastern University School of Law in Boston said Philip Morris is likely to ask the U.S. Supreme Court to take another look at the punitive damages, and it's possible the high court won't reconsider the size of the award.

EXCERPTS from The Oregonian, January 31, 2008, headlined, "Oregon Supreme Court backs $79.5 million award; Tobacco - The judgment against Philip Morris had been overturned twice", writer Ashbel S. Green.
The Oregon Supreme Court today upheld a $79.5 million punitive damages award against Philip Morris that has twice been overturned by the U.S. Supreme Court.

The most recent reversal concerned a jury instruction and whether it violated the constitutional rights of Philip Morris.

But the Oregon Supreme Court said Philip Morris incorrectly submitted the jury instruction, so there was no violation.

The award stems from a 1999 trial in Multnomah County. A jury found the tobacco company partially responsible for the death of Jesse D. Williams, a longtime Marlboro smoker who died of lung cancer in 1997.

The jury ordered Philip Morris to pay $821,485 in compensatory damages and $79.5 million in punitive damages, which are designed to punish bad behavior.

Attorneys for the Williams family presented evidence that tobacco executives repeatedly lied about the risks of smoking.

The U.S. Supreme Court overturned the award in 2003 and ordered the Oregon Supreme Court to consider a formula that a punitive damage award should generally be no more than nine times a compensatory award.

The Oregon Supreme Court upheld the award, saying the "reprehensible" conduct of Philip Morris officials warranted such a large verdict.

Last year, the U.S. Supreme Court overturned the verdict again.

The court did not mention the size of the award but focused on a narrow question about whether the jury considered the injuries of other smokers in calculating the size of the punitive damages.

February 2006:  "In an opinion expressing contempt for the lethal business practices of Philip Morris, the Oregon Supreme Court today [February 2, 2006] affirmed an appeals court ruling restoring a 1999 punitive damages award of $79.5 million in the lung cancer wrongful death trial of Jesse Williams."

February 20, 2007, the US Supreme Court in a 5-4 decision overturned the punitive damages award, but did not address the size of the award or adversely affect punitive damages as a function of the civil justice system.
In a dissenting opinion, US Supreme Court Justice Paul Stevens wrote,
A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim.  Similarly, there is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those "bystanders" as well as the harm to the individual plaintiff.  The Court endorses a contrary conclusion without providing us with any reasoned justification.

Excerpts from BBC News, 20 February, 2007, headlined, Tobacco firm wins payout appeal, no writer noted.The US Supreme Court has thrown out a ruling that tobacco firm Philip Morris must pay $79.5m (£40.7m) in punitive damages after the death of a smoker.

The court decided 5-to-4 that the earlier ruling must be overturned. It said the jury had not been told that it could only fine the firm for harm done to the plaintiff, not to other smokers whose cases were not before it.

The case was brought by Mayola Williams, whose husband Jesse died of lung cancer in 1997 after smoking for 40 years. Ms Williams sued the cigarette manufacturer for fraud on behalf of her husband. She had claimed that the jury decision was right because it had punished Philip Morris for a "massive market-directed fraud" over many years - misleading people into thinking cigarettes were not dangerous or addictive. Ms Williams had argued that her husband had believed tobacco companies when they said the product was safe.

Her payout had earlier been upheld by the Oregon state Supreme Court.

In the appeal, Philip Morris said the jury should only have been allowed to punish it for the harm done to Mr Williams and not to other smokers. Philip Morris also asked the court to decide whether the payout had been "constitutionally excessive", but the judges made no comment on this.

A number of organisations, including the National Association of Manufacturers and the Chamber of Commerce have called for greater restrictions on the sums which can be ordered in damages.

EXCERPTS from News Release, February 20, 2007, Tobacco Product Liability Project, headlined, U.S. Supreme Court overturns punitive damages award in Williams but does not address size of the award or adversely affect punitive damages as a function of the civil justice system.  Further information on litigation is at their web site.


 Oregon Supreme Court makes the next move and may:

a) Revise the opinion and uphold the award;
b) Revise the opinion and reduce the award; or
c) Order a new trial on punitive damages only

BACKGROUND

No. 05-1256
IN THE SUPREME COURT OF THE UNITED STATES

PHILIP MORRIS USA , Petitioner, v. MAYOLA WILLIAMS, Respondent.

The lawsuit was brought by the family of Jesse Williams, who smoked Marlboro cigarettes for 47 years, and resulted in a jury finding that Mr. Williams and Philip Morris were equally at fault for the fatal lung cancer suffered by Mr. Williams.  The jury awarded the family $800,000 in compensatory damages in 1999. In addition, the jury found that Philip Morris was guilty of common law fraud for its 50 years of lies and awarded $79.5 million in punitive damages. 

Boston , MA :  

Neither Philip Morris nor the lawyers taking on Big Tobacco were entirely happy with today's 5-4 decision of the U.S. Supreme Court in Philip Morris, USA v. Williams .   Obviously, while Philip Morris and many corporate defendants hoped that today's decision would set firm limits on the amount of punitive damages that could be awarded to punish and deter reprehensible business practices that injure and kill, it did no such thing.  Rather, it imposed a requirement that punitive damages awards must not be used to punish defendants for harm to anyone not involved in the litigation.  On the plus side for Philip Morris, a punitive damages award of $79.5 million is no longer valid but may be reinstated, reduced, or a new trial to determine the amount of punitive damages could be ordered. 

The two questions that the U.S. Supreme Court reviewed were:

1. Whether, in reviewing a jury’s award of punitive damages, an appellate court’s conclusion that a defendant’s conduct was highly reprehensible and analogous to a crime can “override” the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm; and

2. Whether due process permits a jury to punish a defendant for the effects of its conduct on non-parties.

The Court did not address the first question. 

Justice Breyer, who authored the Majority Opinion, states:

In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.

This conclusion stems from the rejection of a jury instruction proposed by Philip Morris that stated, in part:

The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant's punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit.

At oral arguments before the U.S. Supreme Court on October 31, 2006, Robert Peck, arguing for Mayola Williams (the widow of the deceased smoker, Jesse Williams), maintained that Philip Morris's proposed instruction was not permissible under Oregon law and so it was not an error to exclude it.  This was the finding of both the Oregon Court of Appeals and Supreme Court of Oregon.

Andrew Frey, arguing for Philip Morris, asserted that it would not be fair to punish them for simply putting others at risk through its conduct.  Justice Stevens asked whether it would be fair to consider the risk to others in ascertaining the reprehensibility of the conduct where someone shot a machine gun into a crowd but only killed one person. In today's' ruling, the Court essentially answers this question by saying that the jury may consider the harm to others or risk to others in determining the reprehensibility of the machine gun attack, but any punitive damages must be limited only to punishing the defendant for the harm to the plaintiff in the court room. 

At oral arguments, several of the Justices expressed concern that the instruction sought by Philip Morris was not especially clear.  It may turn out that after considering the meaning of today's ruling, the Oregon Supreme Court will find that the instruction was properly denied and reinstate the verdict.  If that happens, Philip Morris will again seek review by the U.S. Supreme Court on the unaddressed question of possible excessiveness of the award. It is far from a sure thing that the Court will agree to revisit this case.

Richard Daynard , Professor of Law at Northeastern University in Boston suggested that, "this result suggests to me that there are not 5 votes at the U.S. Supreme Court for keeping punitive damages to single digit multipliers.  If there were, it would have been a much simpler matter for the Court to simply say so and strike the award on that basis.  Were the award affirmed in Oregon , I doubt that the U.S. Supreme Court would chose to overturn the award because it is excessive."

Mark Gottlieb , Director of the Tobacco Products Liability Project noted: "What the Court did not do today was to impose any new limits on the amount of punitive damages in tobacco cases.  This is a result that most people expected after hearing oral arguments in October.  The Oregon Supreme Court must now determine whether the denial of the jury instruction in question was proper and whether the jury may have improperly punished Philip Morris for injuring and killing Oregonians besides Jesse Williams.  If not, the award will likely be reinstated.  If so, it may be reduced or punitive damages would have to be determined by another jury."

Edward L. Sweda, Jr ., Senior Attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston, noted that, "We are encouraged that there appears to be no desire by U.S. Supreme Court to put an artificial cap (such as never exceeding a single-digit ratio between punitives and compensatory damages) on the level of punitive damage awards, as Philip Morris had strenuously urged the court to do.” Edward L. Sweda, Jr., attended the oral argument in this case last October.


2006
EXCERPTS from Media Release, February 2, 2006, Tobacco Products Liability Project, Northeastern University School of Law, Boston, Massachusetts, USA, Edward L. Sweda, Jr., Senior Attorney, headlined: 
Oregon Supreme Court Affirms $79.5M in Punitive Damages Against Philip Morris
for Wrongful Death of Smoker Jesse Williams
In an opinion expressing contempt for the lethal business practices of Philip Morris, the Oregon Supreme Court today [February 2, 2006] affirmed an appeals court ruling restoring a 1999 punitive damages award of $79.5 million in the lung cancer wrongful death trial of Jesse Williams. This opinion demonstrates that when conduct as reprehensible as that engaged in by cigarette companies is at issue, high punitive damage awards are available to punish and deter such extreme behavior despite a 2003 US Supreme Court case known as State Farm, even when the ratio of punitive to compensatory damages reaches 99 to 1.

IN THE SUPREME COURT OF THE STATE OF OREGON

MAYOLA WILLIAMS,
Personal Representative of the Estate of
JESSE D. WILLIAMS, Deceased,
Respondent on Review,
v.
PHILIP MORRIS INCORPORATED,
nka PHILIP MORRIS USA INC.,
Petitioner on Review,
and
RJ REYNOLDS TOBACCO COMPANY,
FRED MEYER, INC.,
and PHILIP MORRIS COMPANIES, INC.,
Defendants.

(CC 9705-03957; CA A106791; SC S51805)
On review from the Court of Appeals.
Argued and submitted May 10, 2005.

BACKGROUND

The lawsuit was brought by the family of Jesse Williams, who smoked Marlboro cigarettes for 47 years, and resulted in a jury finding that Mr. Williams and Philip Morris were equally at fault for the fatal lung cancer suffered by Mr. Williams.   The jury awarded the family $800,000 in compensatory damages.  In addition, the jury found that Philip Morris was guilty of common law fraud for its 50 years of lies and awarded $79.5 million in punitive damages, much of which, under Oregon law, is directed to special state funds to benefit victims of crime.  The trial judge reduced the punitive damages to $32 million and both Philip Morris and The Estate of Jesse Williams appealed.

The Oregon Court of Appeals rejected Philip Morris's appeal but reinstated the $79.5 million punitive damages award on June 5, 2002.  Philip Morris appealed to the Oregon Supreme Court but was again rebuffed. Then the company appealed to the U.S. Supreme Court, which had issued a decision in 2003 that can restrict awards of punitive damages that greatly exceed the underlying compensatory damages award (State Farm Insurance Co. v. Campbell). The nation's high court sent the case back to the Oregon Court of Appeals so that it could reconsider its decision to restore the full punitive damages award in light of the State Farm decision and nullified the restoration of the $79.5 million award stemming from 2002's decision.

But after applying the appropriate standards for reviewing punitive damages, on June 9, 2004, the Oregon Court of Appeals found ample reason to once again restore the jury's $79.5 million punitive damages verdict against Philip Morris. The Court, at one point in the decision, states that, "it is difficult to conceive of more reprehensible misconduct for a longer duration of time on the part of a supplier of consumer products to the Oregon public than what occurred in this case." Philip Morris then appealed to the Oregon Supreme Court for the second time. This time, the highest court in Oregon agreed to review the verdict.

The court quotes State Farm on the appropriate size of punitive damages:  "Single-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in [the] range of 500 to 1, or, in this case [referring to Campbell v. State Farm], of 145 to 1."

Continuing to quote State Farm, the court noted that the U.S. Supreme Court, "did acknowledge, however, that even those tentative ratios might be adjusted up or down. A greater ratio might comport with due process if 'a particularly egregious act has resulted in only a small amount of economic damages . . .'."

The court concludes by excoriating Philip Morris's behavior:
Philip Morris's conduct here was extraordinarily reprehensible, by any measure of which we are aware. It put a significant number of victims at profound risk for an extended period of time. The State of Oregon treats such conduct as grounds for a severe criminal sanction, but even that did not dissuade Philip Morris from pursuing its scheme.

In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large group of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process, as we understand that standard to relate to punitive damage awards.

Philip Morris will certainly seek to have the decision reviewed a second time the the U.S. Supreme Court. However, based on the four prior decisions made by Oregon's courts, all finding Philip Morris's behavior to be outrageous and unacceptable, it is highly doubtful that the U.S. Supreme Court will overturn this historic decision.

A recent Working Paper by Tobacco Control Resource Center attorney Sara D. Guardino and Northeastern University School of Law Professor Richard A. Daynard entitled "Punishing <http://law.bepress.com/expresso/eps/447>  Tobacco Industry Misconduct: The Case for Exceeding a Single Digit Ratio Between Punitive and Compensatory Damages, [pdf]" offers additional support for today's Oregon Supreme Court's decision.

COMMENTARY

Mark Gottlieb, Director of the Tobacco Products Liability Project, noted: 
"This decision is important because it shows that despite the cigarette companies' arguments that the ratio of punitive damages to compensatory damages can never exceed 10 to 1, when the defendant's behavior is as extreme and reprehensible as Philip Morris's has been, our civil justice system is capable of sending a message that society will not tolerate such blatant disregard for health and life."


Regarding the Altria response to the situation, Edward L. Sweda, Jr., Senior Attorney, Tobacco Products Liability Project, on February 2, 2006, noted the following:
Claiming that the Oregon Supreme Court today "rejected the U.S. Supreme Court's holdings regarding punitive damages" and that today's unanimous ruling in Williams v. Philip Morris, Inc. et al. "violates the rules set forth in State Farm," (the United States Supreme Court's 2003 ruling in State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408), Altria Group today issued a statement that "grossly misrepresents the state of the law regarding punitive damages," according to Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston.

In today's ruling, the Oregon Supreme Court specifically noted that the U.S. Supreme Court's ruling in State Farm v. Campbell "specifically contemplated that some awards exceeding single-digit ratios (comparing punitive damages to compensatory damages) would satisfy due process."  The Oregon Supreme Court also noted that "single-digit ratios may mark the boundary in ordinary cases, but the absence of bright-line rules necessarily suggests that the other two guideposts -- reprehensibility and comparable sanctions -- can provide a basis for overriding the concern that may arise from a double-digit ratio."

In its 2003 opinion in State Farm v. Campbell, the U.S. Supreme Court did not rule that all double-digit ratio awards in punitive damages violate due process. The U.S. Supreme Court specifically ruled, in State Farm v. Campbell, 538 U.S. at 418:  "We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."

Attorney Sweda commented: "The U.S. Supreme Court said 'few' awards - not 'no' awards - could exceed the single-digit ratio. The Oregon Supreme Court today eloquently explained why Philip Morris' conduct was so 'extraordinarily reprehensible' that it fit into the category of those 'few' cases where double-digit punitive damage awards do satisfy due process."

Sweda concluded: "If Philip Morris wants to try to justify its outrageous and reprehensible conduct, let it try. But its statement that the Oregon Supreme Court somehow 'rejected the U.S. Supreme Court's holdings regarding punitive damages' is demonstrably false."

Richard Boeken case:

EXCERPTS from knbc.com, July 9, 2007, headlined, "Judge Rules in Favor of Ex-Smoker's Son Against Philip Morris"; writer not given.
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.

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 in June 2006. Their attorney, Michael J. Piuze, maintained most of the issues 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 wanted a complete trial on all the issues.

Los Angeles Superior Court Judge David L. Minning took the matter under submission April 24 and ruled Monday in favor of Dylan Boeken.

"This court concludes that (Philip Morris) has not demonstrated that relitigation of issues, other than issues of causation and damages, is appropriate in this case," Minning stated in a two-page ruling.

Dylan Boeken's case is set for trial Jan. 7 [2008].

Judy Boeken is no longer part of the lawsuit because Minning issued a nine-page ruling in February granting a Philip Morris motion to throw out her claims entirely. Piuze is appealing that decision.

The current lawsuit is the third filed by members of the Boeken family against Philip Morris. Richard Boeken sued the company for personal injury in March 2000, five months after the two-pack-a-day Marlboro smoker was diagnosed with lung cancer.

Richard Boeken began smoking at age 13, Piuze said [buying cigarettes from a vending machine].

After a trial of Richard Boeken's lawsuit, a jury in June 2001 directed Philip Morris to pay him $3 billion, that year's largest award according to a survey by Lawyers Weekly USA magazine.

Judge Charles McCoy cut the award to $100 million that August.

Appeals were then filed by both sides. In September 2004, a panel from the 2nd District Court of Appeal affirmed the judgment but further reduced the damages to $50 million.

Both sides filed petitions, asking the panel to rehear the matter. The case was reheard in February 2005, but the justices later affirmed the $50 million award less than two months later.

Piuze said the tobacco company ultimately paid $55 million, plus many millions of dollars more in interest.


EXCERPTS from The Los Angeles Times, March 21, 2006, headlined,Widow's Legal Battle With Philip Morris Ends, writer, Myron Levin
Five years after a landmark defeat in a Los Angeles courtroom, tobacco giant Philip Morris USA has exhausted its appeals and will have to pay record damages of more than $82 million to the widow of a longtime smoker of its Marlboro cigarettes.

Without comment, the U.S. Supreme Court on Monday refused to review a 2001 verdict in the case filed by Richard Boeken of Topanga. Boeken, who began smoking in his teens, died of cancer at 57, shortly after the verdict in the first suit by an individual smoker ever tried in Los Angeles.

Although cigarette makers have agreed to some major settlements, including $246 billion to end lawsuits by the states, in more than 50 years of litigation, they have had to write checks to only a handful of individual smokers.

The Boeken award - consisting of $5.54 million in compensatory damages, $50 million in punitive damages and more than $26 million in interest - will be the largest recovery by an individual to date.

It will eclipse the previous record payment of $16.7 million last year to a former smoker from Glendale. Philip Morris, a unit of Altria Group Inc. and the top U.S. cigarette maker, lost that case too.

Boeken's widow, Judy Boeken, could not be reached for comment. But her lawyer, Michael Piuze of Los Angeles, said she "is happy that the litigation's over."

Ed Sweda, senior attorney for the Boston-based Tobacco Products Liability Project, which encourages lawsuits against the tobacco industry, said the Supreme Court's decision not to accept the appeal "demonstrates that tobacco litigation remains a viable - and still emerging - strategy to promote the public health."

Still, the award is a wisp of its original self. Outraged jurors in Los Angeles County Superior Court had ordered Philip Morris to pay Boeken $3 billion in addition to compensatory damages in June 2001 after finding the company guilty of fraud, negligence, misrepresentation and selling a defective product.

Weeks later, the trial judge sliced the punitive award to $100 million. A California appeals court then trimmed it to $50 million, despite its finding that Philip Morris' conduct was "extremely reprehensible."

"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 demonstrated "intentional deceit," the state appeals court ruled last year.

But the panel also cited a 2003 U.S. Supreme Court opinion that punitive damages usually should not exceed nine times the compensatory damages. That ratio was reflected in the state appeals court ruling.

Piuze had argued that the ratio was a guideline, not a rule, and should not protect a company that he said was responsible for millions of deaths.

Although the court's decision Monday was a victory for the plaintiff, Piuze said he was not satisfied "with the end result, which is a penalty of one half week of earnings" for Philip Morris.

Legal analysts believe that the court may be more likely to consider an appeal of another verdict that went well beyond the 9-to-1 guideline.

It's an Oregon case in which the $80-million award against Philip Morris includes $79.5 million in punitive damages and $521,000 in compensatory damages - a ratio of more than 152 to 1.

The Oregon Supreme Court affirmed the verdict last month, setting the stage for a last-ditch appeal to the nation's highest court.

The Boeken verdict was among a string of four straight big defeats for cigarette makers in Los Angeles and San Francisco superior courts.


EXCERPTS from Bloomberg News, March 20, 2005, headlined, Altria Rejected by U.S. High Court on $55 Mln Award, writer, Greg Stohr, Chris Burritt contributing, editor Asseo.
The U.S. Supreme Court rejected Philip Morris USA's appeal of a $55.5 million award to the family of a California lung cancer victim, clearing the way for the largest court-ordered payment in an individual smoking lawsuit.

The justices, acting in the case of smoker Richard Boeken, made no comment in turning away an appeal by Philip Morris, an Altria Group Inc. unit that is the world's largest cigarette maker. The court in Washington also rejected a separate appeal by Boeken's widow that said a California state appeals court went too far in cutting the $3 billion originally awarded by a jury.

The payment will be more than five times the previous record, a $10.5 million award paid by Philip Morris last year in another California case. It will be the fifth verdict ever paid by the industry in an individual smoking case, according to Edward L. Sweda Jr., a lawyer at the anti-smoking Tobacco Products Liability Project in Boston.

"This helps to show that litigation remains a viable strategy to hold the tobacco companies responsible for their reprehensible misconduct," Sweda said.

Boeken began smoking two packs of Marlboros a day in 1957 when he was 13.  The former construction worker and securities salesman was diagnosed with lung cancer in 1999 and sued Philip Morris in 2000, alleging negligence, false representation and conspiracy. After he died in 2002 at age 57, his wife continued to press the case as trustee for his estate.

Judy Boeken argued in court papers that Philip Morris, which is based in Richmond, Virginia, deserved to be punished for years of public deception about the health dangers of smoking and for a marketing campaign directed at children.

The $3 billion jury award "was imposed to punish a defendant which for decades pursued an official corporate fraud policy against Californians while knowing vast numbers of its targets would suffer and die as a result," she argued.

Philip Morris won a pair of major legal victories last year. The Illinois Supreme Court overturned a $10.1 billion award to smokers of "light" cigarettes, and a federal appeals court in Washington said the Justice Department can't seek $280 billion from cigarette makers in a racketeering suit. The company is awaiting a Florida Supreme Court ruling on a $145 billion award in that state.

Altria Chief Executive Officer Louis Camilleri said last year that the company needed a successful resolution of those three cases to proceed with an effort to separate its tobacco and food businesses.


EXCERPTS from The Richmond Times Dispatch [Virginia], March 21, 2006, headlined, Tobacco judgment allowed to stand, Court won't review $50 million award against Philip Morris, From Wire and Staff Reports, contribution from John Reid Blackwell.
The [U.S.] Supreme Court refused yesterday to consider tossing out a $50 million damage award to the family of a two-pack-a-day smoker who died of cancer.

Henrico County, Va.-based Philip Morris USA, which controls about half the U.S. cigarette market, had asked the justices to declare the award unconstitutionally excessive and to rule that the company should have been shielded from some of the smoker's claims.

The justices declined, without comment.

Richard Boeken, who initially won $3 billion in punitive damages, was 57 when he died in 2002, a year after a California jury found Philip Morris guilty of negligence, misrepresentation, fraud and selling a defective product.

The damage award was reduced to $100 million, and then cut in half by an appeals court.

Edward Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University, said the case shows that smokers' lawsuits are still a problem for cigarette makers, despite "rosy" predictions by Wall Street analysts that the threat is lifting.

Lawyers for Boeken's family had asked the justices to consider "Philip Morris's immensely reprehensible, immensely profitable fraud scheme perpetuated for decades."

Philip Morris lawyer Andrew Frey told the justices that the company did not conceal information about low-tar cigarettes. The company, which is part of New York-based Altria Group Inc., wanted the high court to use the case to clarify the formula for deciding punitive damages.

Boeken's case reveals a highly addicted smoker who took up the habit at 13 and tried everything from hypnosis to classes and nicotine gum in an effort to quit. He switched to Marlboro Lights in the belief they were safer.

EXCERPTS from The Los Angeles Times, August 12, 2005, headlined, Philip Morris Vows to Appeal Judgment to U.S. High Court, writer, Myron Levin.
Philip Morris USA said Thursday that it would ask the U.S. Supreme Court to reverse a California ruling that has brought the company a step closer to paying record damages to the widow of a deceased smoker.

The California Supreme Court refused Wednesday to hear an appeal of a $55.4-million judgment against the top U.S. cigarette maker, a unit of Altria Group Inc. In June 2001, Philip Morris was found guilty of negligence and fraud in a lawsuit filed by Topanga resident Richard Boeken, a former Marlboro smoker then afflicted with lung cancer who died a few months later at 57.

Unless the U.S. high court agrees to intervene, Philip Morris will have to pay the judgment, plus at least $20 million in interest, to his widow, Judy Boeken.

Although tobacco companies have agreed to pay major out-of-court settlements - including about $246 billion to resolve litigation with the states - they have paid barely a handful of judgments to individuals with smoking-related illnesses.

To date, $16.7 million is the most received by a successful plaintiff.  Philip Morris paid the sum to Patricia Henley, 58, of Glendale in March, when the U.S. Supreme Court's refusal to review the case ended a seven-year legal battle. The Henley award consisted of $10.5 million in compensatory and punitive damages and about $6.2 million in interest.

In the first suit by a smoker ever tried in Los Angeles, a Superior Court jury stunned Philip Morris by awarding Boeken $3 billion in punitive damages on top of $5.54 million in compensatory damages. The trial judge, Charles W. McCoy Jr., shaved the punitive award to $100 million. Then in September -- in the ruling that the state Supreme Court has just declined to review - a state appeals panel upheld the liability findings but cut punitive damages to $50 million.

In that ruling, the appeals court affirmed that Philip Morris had been guilty of "reprehensible conduct established by the evidence, repeated over four decades, and resulting in the death of Boeken."

In the motion filed with the appeals court, Philip Morris said it would raise several issues with the justices, including whether the company was protected from liability by federally required warning labels on cigarette packs and whether the $50 million in punitive damages was "constitutionally excessive."

But the cigarette maker's prospects are uncertain at best because the Henley appeal raised similar issues and the justices declined to hear it.

The plaintiff and Philip Morris were both disappointed by Wednesday's refusal by the state Supreme Court to hear the Boeken appeal, said Boeken attorney Michael Piuze. Both sides had challenged the appellate court ruling.

Piuze had argued that the appeals court erred in cutting the award, saying it had misapplied a U.S. Supreme Court decision meant to limit punitive damages. That 2003 decision held that punitive damages typically should not exceed nine times the compensatory damages - the exact ratio applied in the Boeken case.

But Piuze said this was a guideline, not a rule, that should have no bearing on Philip Morris, a company that Piuze said was responsible for hundreds of thousands of deaths.


Patricia Henley defeats Philip Morris!
EXCERPTS below from:  The Los Angeles Times, Reuters, L.A. Daily News, and Market Watch.

EXCERPTS from The Los Angeles Times, March 22, 2005, headlined:  "High Court Turns Away Philip Morris:  A smoker in Glendale who developed cancer is set to collect more than $16 million in damages."  Writer, Myron Levin.
The U.S. Supreme Court on Monday rejected an appeal by Philip Morris, setting the stage for the tobacco giant to pay more than $16 million to a Glendale woman who contracted lung cancer. It would be the largest payment and the first punitive damages ever paid to an individual smoker.

The court's refusal to review the case was the last gasp for Altria Group Inc.'s Philip Morris, which had been fighting for six years to overturn the damages award to Patricia Henley.

Henley was diagnosed with lung cancer in 1998 after more than 30 years as a Marlboro smoker. In February 1999, a jury in San Francisco Superior Court decreed that the company had lied about the risks and addictiveness of smoking and was responsible for Henley's cancer, and awarded her $51.5 million.

Although the award eventually was reduced to $10.5 million, Philip Morris will have to write a check for $16.7 million because of interest accrued during the years of appeals. Henley, 58, said she planned to give most of the money to a foundation to teach children about the ills of smoking and treat kids with respiratory ailments and cancer.

"This is a good day for the children," said Henley, who had long complained that her case would never end. "This is punishment money from the tobacco industry, but it needs to be turned into money that's going to help people."

Henley's original jury award was three times what her lawyer, Madelyn Chaber, had asked for. But the victory was just the beginning of an endurance contest. The case pingponged through the legal system, three times going back and forth between the state Court of Appeal and the California Supreme Court to resolve various issues.

Along the way, the original award was reduced twice — first to $26.5 million, then to $10.5 million. But the state Supreme Court in September refused Philip Morris' request to overturn the liability finding, prompting the company to seek a reprieve from the U.S. Supreme Court.

Anti-smoking groups hailed Monday's decision, noting how few individual plaintiffs have actually collected money from cigarette makers.

"At long last, Philip Morris will have to pay Patricia Henley because of its history of lies, fraud and other corporate wrongdoing," said Edward L. Sweda Jr., senior attorney for the Tobacco Products Liability Project, a Boston-based group that promotes litigation against cigarette makers.

Over the years, cigarette makers have lost in the trial court about 20 times, but most of these defeats are in various stages of appeal or have been reversed.

Henley is to become only the fourth individual smoker, and the first from California, to collect a damages award. In the other three cases, tobacco companies paid compensatory damage of $196,000 to more than $3.4 million to three Florida smokers.

Cigarette maker Lorillard Inc., a subsidiary of Loews Corp., has paid at least half a dozen settlements and judgments to people who contracted mesothelioma, an asbestos-related cancer, after smoking Kent cigarettes during a period in the early 1950s when its patented Micronite filter contained a particularly dangerous form of asbestos. Legal observers consider these asbestos lawsuits, rather than smoking cases per se.

Chaber, Henley's lawyer, brought some of the Micronite cases too. "I feel like it's a victory for the little person against Big Tobacco," Chaber said of Monday's decision.

Henley's $10.5-million award consisted of $1.5 million in compensatory and $9 million in punitive damages. After the trial judge had cut the jury's original punitive damages award to $25 million from $50 million, appellate judges reduced it further to conform with a 2003 ruling by the U.S. Supreme Court that punitive damages generally should be no more than nine times the compensatory award.

Henley said Monday that after paying taxes and legal fees, she would keep the compensatory damages to live on and donate the rest to the Patricia Henley Foundation, based in Santa Barbara.

Shares of Altria Group fell $1.44 on Monday to $63.28 on the New York Stock Exchange.


EXCERPTS from Reuters, March 21, 2005, headlined, "Court Rejects Philip Morris $9 Million Award Appeal"; no writer noted.
The U.S Supreme Court on Monday rejected an appeal by Altria Group Inc.'s Philip Morris USA in a California case involving $9 million in punitive damages awarded to a former longtime smoker who has lung cancer.

Without comment, the justices declined to consider the tobacco company's appeal arguing that the case should be reviewed by the Supreme Court or at least sent back for further consideration.

The case involved Patricia Henley, who sued Philip Morris after developing lung cancer. Her attorneys argued at trial that there were no warnings on cigarette packages when she began smoking in 1961 and that the company had hidden evidence about the health risks of smoking and its addictiveness.

A jury in 1999 initially awarded her $1.5 million in compensatory damages and $50 million in punitive damages, but the trial judge cut the punitive damages award in half.

After a U.S. Supreme Court ruling in 2003 that put new limits on punitive damages, a state appeals court cut the amount awarded to Henley to $9 million.

The Chamber of Commerce business group supported the appeal. But attorneys for Henley said the issues actually decided by the California courts were not worthy of Supreme Court review.


EXCERPTS from the L.A. Daily News, Mrch 21, 2005, headlined, "Woman's tobacco judgment upheld"; writer Naush Boghossian.
 Diagnosed in 1997 with lung cancer and given just four months to live, Patricia Henley decided to spend her last days fighting the Philip Morris tobacco company so that others would know the truth about the dangers of smoking.
Now, seven years after filing suit -- and with her cancer in remission -- the former singer can boast that she is one of the few people to go up against Big Tobacco -- and win.

The Supreme Court declined Monday to consider reducing a $10.5 million judgment awarded to the Glendale resident. Hers is a landmark case: the first judgment against Philip Morris; the first anti-tobacco case in California to result in an award; and the first case in the United States in which punitive damages were upheld against a tobacco company.

"People have asked me, Why did you think you had the right to sue this company?" she said in an interview. "I had no other choice.

"This was the only course I had to prove what I knew, what they were doing to injure people, to get children addicted to this product so they have another customer for 10, 15, 20 years," said Henley, who is 58 and smoked Marlboros for 35 years.

"Believe me, fighting for this doesn't make you a hero. It makes you a human being."

Henley plans to use the $1.5 million in compensatory damages to pay medical bills. The $9 million in punitive damages will go to the Patricia Henley Foundation, which uses the arts to teach children about the hazards of smoking and also helps youngsters suffering from cancer, asthma and other diseases caused by smoking.

In 1999, a jury in San Francisco ordered Philip Morris to pay Henley $51.5 million -- a judgment that was cut by the trial judge to $26.5 million.

In 2003, a state appeals court reduced the award to $10.5 million because of the U.S. Supreme Court's ruling limiting punitive damages that greatly exceeded a plaintiff's actual damages.

"Not only did she whack big corporation, but she is a living testament to will and hope," said friend Linda Laurie, who's working with Henley on her nonprofit foundation. "This is an amazing woman, a strong-willed woman and a woman of great heart."

Bill Ohlemeyer, vice president and associate general counsel of Philip Morris USA, said the company was disappointed that the nation's high court had declined to review the judgment.

"It won't prevent us from vigorously and, we think, successfully defending against other cases in the state," he said, noting that Philip Morris has successfully defended itself against the past four cases tried in California.

"It does not set any precedent or have any legal effect on any legal case in California. Each of these cases rises or falls on its own facts. Juries for the most part agree that people who smoke are aware of the risks."

But Henley's attorney, Madelyn Chaber, argues that the reverberations of the decision will be felt for years to come.

"I think it's huge. They can downplay it all they want, but the reality is they took this case as far as they could go and they lost," she said.

"I think that this will encourage other people that they can pursue a case, that the tobacco companies are not invulnerable. And I think it will take less and less time over the years, because a lot of law has been written because of this case, and there's a road map for other cases."

Henley said she was just 15 when she smoked her first cigarette. She was at a dance with a boy who smoked Marlboros, and she wanted to impress him.

By the time the surgeon general released the first warning about the dangers of cigarettes in 1964, she was already hooked, smoking two packs a day.

As she grew older and concerns continued about the dangers of cigarettes, she called Philip Morris and asked whether she had anything to worry about.

Henley said she was reassured that cigarettes were safe, but that she should switch to "lights" if she was still worried. She did, and her habit grew to 3 packs daily until she quit cold turkey in 1997.

Two weeks later -- after going to the doctor with what she thought was pneumonia -- she was diagnosed with inoperable lung cancer and told she had four months to live.

About that time, after reading about a comment made by the CEO of R.J. Reynolds, she decided to hire an attorney and spend her last days fighting.

"It said their focus is on the young, the poor, the black and the stupid," she said. "Based on that, I fell in the category of stupid. And that's when I hired an attorney."

With the battle behind her, Henley said, she plans to dedicate herself to her foundation and write a book -- not about the tobacco industry, but about strong women.

The mother of two said she doesn't know how or why she survived the disease, but that now her mission is to get people to realize the truth about the dangers of smoking.

"There was a sweetener that killed one rat, and they took it off the market," she said. "But they continue to sell this product that is proven to kill people. Where does that make any sense?"

To donate to or get involved with the Patricia Henley Foundation, e-mail lindalaurie@cox.net <mailto:lindalaurie@cox.net> .



EXCERPTS from Market Watch, March 21, 2005, headlined, "Altria lower on Supreme Court ruling"; writer, Russ Britt.
Shares of Altria Group Inc. fell Monday as the U.S. Supreme Court declined to review its appeal to overturn a $10.5 million judgment brought against the tobacco giant by a California smoker who contracted lung cancer.

A component of the Dow Jones Industrial Average, Altria lost $1.44, or 2.2 percent, to $63.28 at the close.

Patricia Henley filed suit against the company, alleging that advertising geared toward youths by Altria's Philip Morris USA unit encouraged her to take up smoking.

Henley originally won her case in 1999 in San Francisco for $51.5 million. That award was reduced twice.

Justices declined to hear the case, and offered no further comment.

Bill Ohlemeyer, the company's vice president and associate general counsel, said the court's move was not surprising since justices rarely choose to hear a case. He added the case should have little effect on other tobacco liability litigation the company faces.

The Tobacco Products Liability Project said Altria is simply being held accountable for its actions.

"At long last, Philip Morris will have to pay Patricia Henley because of its history of lies, fraud and other corporate wrongdoing," senior attorney Edward Sweda said in a press release. "The payment to Ms. Henley, though long overdue, is most welcome."

Leslie Whiteley

October 15, 2009
How Much is a Life Worth, to the tobacco companies, to society?
October 15, 2009, News Release, Tobacco Products Liability Project, Edward L. Sweda, Jr.
Appeals Court Upholds California Jury’s Multi-Million Dollar Verdict against R.J. Reynolds and Philip Morris.
The family of Leslie Whiteley, a smoker who smoked her first cigarette in 1972 at age 13, was diagnosed with lung cancer in 1998 and who died in July 2000 at the age of 40, won a major victory on Wednesday when the Court of Appeal of the State of California, First Appellate District, Division Two, upheld the jury’s awards, rendered in 2007, for her estate:  $225,000 (for past economic damages); $2,345,964 (on wrongful death claims); and $250,000 (in punitive damages against R.J. Reynolds on the false promise cause of action).  The jury also awarded Leonard Whiteley, Leslie’s widower, $30,000 for pre-death loss of consortium. 

“I am delighted for the Whiteley family that the Court of Appeal has rejected each of the tobacco companies’ arguments to overturn the verdict.  The family is closer to the day when these companies will be held accountable for their reprehensible wrongdoing,” said Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP), which is based at Northeastern University School of Law in Boston.

The decision is at http://www.courtinfo.ca.gov/opinions/nonpub/A119345.PDF


EXCERPTS from The Recorder, May 3, 2007, headlined, "Calif. Smoker Gets Higher Compensatory Damages in Second Trial," writer Matthew Hirsch

For the second time in about seven years, a San Francisco jury has found two major tobacco companies liable for damages related to Leslie Whiteley's habit of smoking cigarettes.

In court Wednesday, a jury recommended Whiteley's husband [Leonard Whiteley] get about $2.5 million in compensatory damages, more than the $1.7 million in compensatories attorney Madelyn Chaber helped the Whiteleys win the first time around, before a higher court ordered a retrial.

Back in 2000, the jury handed him and his wife a total of $21.7 million -- including $20 million in punitives, $10 million each against two tobacco companies.

But that was before an appeal court overturned the entire verdict in 2004, and substantially limited the plaintiffs' case going forward. In Whiteley v. Philip Morris, 117 Cal.App.4th 635, the 1st District Court of Appeal concluded the defendants could not be held liable for certain conduct during a 10-year window closed by the legislature beginning in 1988.

As San Francisco Superior Court Judge Robert Dondero read from five verdict forms Wednesday, it was immediately clear Chaber had convinced jurors that both tobacco companies had made "false promises" and committed "intentional" and "negligent" misrepresentations in statements about the dangers of smoking cigarettes.

A smoker since age 13, Leslie Whiteley sued in 1999 claiming the tobacco companies misled her about the dangers of their products. She died soon after the first trial ended, at age 40.

But in order to get punitive damages, Chaber needed nine of the 12 jurors to answer any of six questions regarding the companies' conduct in the affirmative.

The plaintiffs got no more than eight votes on all but one of those questions. The vote on a single finding of malice against R.J. Reynolds came out 9 to 3. Philip Morris escaped exposure on the same question by a vote of 8 to 4.

Dondero gave Chaber until today to prepare discovery arguments before presenting her case for punitive damages. On Wednesday, Chaber told the judge she wants R.J. Reynolds to turn over historical information about the company's market capitalization.



[Virginia GASP]   Updated October 15, 2009