Metropolitan News-Enterprise


Friday, November 9, 2001


Page 1


Appeals Court Upholds $26.5 Million Judgment Against Philip Morris


By KENNETH OFGANG, Staff Writer/Appellate Courts


The repeal of the statutory immunity that was given to the tobacco industry in 1987 allows smokers to sue for damages caused before the immunity became law, the First District Court of Appeal has ruled.

Div. Four Wednesday affirmed a judgment for $1.5 million in compensatory damages and $25 million in punitive damages, saying a 55-year-old lung cancer victim who started smoking in the early 1960’s was entitled to sue based on an addiction to cigarettes.

Philip Morris contended that Patricia Henley’s suit was barred by former Civil Code Sec. 1714.45. The legislation, which barred products liability suits against makers of tobacco and other “common” products for personal consumption, was enacted in 1987, took effect Jan. 1, 1988, and was repealed as to tobacco products in 1997.

Justice Patricia Sepulveda, writing for the Court of Appeal, acknowledged the Oct. 25 decision of the Fourth District Court of Appeal’s Div. One in In re Tobacco Cases II, which reached a contrary conclusion in a suit brought by union pension funds.

“Our study of the statutory language has led us to the contrary conclusion,” she explained in a footnote, which also noted that at least five similar cases are pending before the state Supreme Court.

Cancer Link

Henley’s case was tried before a San Francisco Superior Court jury, which heard evidence that Philip Morris and other tobacco companies had acted in concert to suppress proof of the link between smoking and cancer. There was also testimony about how Marlboro, the brand favored by plaintiff, was marketed in a way that targeted teenage smokers.

Henley said she started smoking when she was 15, primarily because her friends smoked and she wanted to be “cool” and feel “grown up.” She said that she continued to smoke “Marlboro Red” until 1989, then switched to “Marlboro Light” after she called the company and was assured that it was “low-tar.”

As a result of that phone call, she said, she doubled her consumption, to three-and-a-half packs per day.

Jurors awarded $1.5 million in compensatory damages and $50 million in punitive damages. San Francisco Superior Court Judge John Munter granted remittitur as to the punitive damages, cutting them in half, which Henley accepted.

In concluding that the defendant couldn’t claim immunity under the repealed statute, Sepulveda cited the language of the repealer, in which the Legislature declared “there exists no statutory bar to” suits for injuries caused by tobacco products  and that it was “the intention of the Legislature to clarify that those claims that were or are brought shall be determined on their merits, without the imposition of any claim of statutory bar or categorical defense.” 

Legislative Authority

While the constitutionality of the repealer might be debatable in some circumstances, she went on to say, lawmakers clearly had the authority to revoke the immunity with respect to injuries, such as Henley’s, which had occurred before the immunity was enacted.

In an unpublished portion of the opinion, the justice concluded that the punitive damage award wasn’t excessive under the U.S. Constitution or state law. 

Citing evidence that Philip Morris was aware of the addictive nature of its product long before Henley sued, the justice wrote:

“Defendant obviously knew that the risks of pursuing its course were very high indeed.  It nonetheless pursued that course.  That it can be compelled to disgorge a tiny fraction of the resulting profits as a punitive award does not offend our conscience, constitutional or otherwise.”

The case is Henley v. Philip Morris, Inc., 01 S.O.S. 5475.


Copyright 2001, Metropolitan News Company