Metropolitan News-Enterprise


Friday, May 14, 2010


Page 1


High Court: Claim by Smoker’s Widow Barred by Res Judicata


By SHERRI M. OKAMOTO, Staff Writer


A deeply divided California Supreme Court yesterday ruled that the widow of a longtime smoker was foreclosed from pursuing a wrongful death action against Philip Morris USA Inc. due to her earlier attempt to recover damages for loss of consortium from the tobacco company.

Writing for the four-justice majority, Justice Joyce L. Kennard explained that Judy Boeken’s dismissed claims seeking compensation for the loss of her husband’s companionship and affection after he was diagnosed with lung cancer encompassed the same primary right and alleged breach as her post-death lawsuit.

Boeken’s husband sued Philip Morris in March 2000, asserting that the tobacco company wrongfully caused his lung cancer. A jury awarded him $5,539,127 in compensatory damages and a then-record sum of $3 billion in punitive damages. The punitive damage award was later reduced by the trial court to $100 million and to $50 million by the Court of Appeal.

Loss of Consortium

In October 2000 Boeken filed a separate action against Philip Morris for loss of consortium, claiming she had been “permanently deprived” of her husband’s “love, affection, society, companionship, sexual relations, and support” since he was “unable to perform the necessary duties as a spouse” and would “not be able to perform such work, services, and duties in the future” as a result of his lung cancer.

About four months later, Boeken dismissed the case with prejudice, and about a year after that, her husband died. Boeken then filed a wrongful death action under Code of Civil Procedure Sec. 377.60 alleging that she had suffered “loss of love, companionship, comfort, affection, society, solace, and moral support” caused by her husband’s demise.

Philip Morris demurred to the complaint, arguing that the wrongful death claim was barred by the doctrine of res judicata. Los Angeles Superior Court Judge David L. Minning agreed and sustained the demurrer without leave to amend.

Court of Appeal

Div. Five of this district’s Court of Appeal upheld Minning’s ruling in a 2-1 decision. Justice Richard M. Mosk, joined by Justice Orville A. Armstrong, concluded that Boeken’s first loss of consortium action covered claims for lost companionship and affection between the time of her husband’s actual death from lung cancer and the time when he would have died of natural causes if defendant’s cigarettes had not wrongfully injured him, and that her later wrongful death sought the same type of damages for this same post-death period.

Presiding Justice Paul Turner dissented, arguing that Boeken could not have pursed her claims arising from her husband’s death until his actual demise and therefore had not yet had the opportunity to litigate her statutory wrongful death cause of action when she dismissed her common law consortium loss claim.

Kennard, however, agreed with Mosk and Armstrong. She reasoned that the Boeken’s initial loss of consortium claim asserted the widow’s “right not to be wrongfully deprived of spousal companionship and affection” and a breach of the corresponding duty “not to wrongfully deprive a person of spousal companionship and affection.”

Dismissed With Prejudice

Once Boeken dismissed the lawsuit with prejudice, Kennard said, this primary right and breach of duty were adjudicated in the defendant’s favor, and the widow could not later allege the same breach of duty in a second lawsuit against defendant based on a new legal theory.

The justice added that a plaintiff in a common law action for loss of consortium “can recover not only for the loss of companionship and affection through the time of the trial but also for any future loss of companionship and affection that is sufficiently certain to occur.”

If an injured spouse is likely to die of his or her injuries, Kennard explained, the future loss of companionship and affection is sufficiently certain to permit an award of prospective damages for the period after the injured spouse’s death, based on the life expectancy that the injured spouse would have had if the injury had never occurred.

Since Boeken’s previous loss of consortium action was not limited in scope to pre-death damages but also sought to recover for the injuries that Boeken anticipated she would continue to suffer as a result of her husband’s premature death, Kennard concluded the wrongful death action was an improper attempt to relitigate the same claim Boeken dismissed with prejudice.

Justices Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan joined Kennard in her decision. Justices Carlos R. Moreno dissented, joined by Chief Justice Ronald M. George and Justice Kathryn M. Werdegar.

Moreno contended that a statutory wrongful death action is different from a common law action for loss of consortium and implicates a distinct primary right. He emphasized that a loss of consortium claim can only be brought by a spouse, but a wrongful death action can also be brought by the children of a decedent. Additionally, Moreno noted that the two theories of recovery allow for different types of damages and have different elements and statutes of limitations.

He cautioned that a plaintiff who recovers for loss of consortium resulting from a shortened life span should not be allowed to recover those same damages in a wrongful death action, but because “the central issue in a wrongful death action—whether defendant’s tortious action caused the decedent’s death” would not have been litigated in the loss of consortium proceeding, the later action should not be barred by collateral estoppel.

Los Angeles attorney Michael Piuze represented Boeken, while Lisa Perrochet of Horvitz & Levy in Encino represented Philip Morris.

The case is Boeken v. Philip Morris USA, Inc., 10 S.O.S. 2499.


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