Metropolitan News-Enterprise


Wednesday, July 10, 2013


Page 1


Appeals Court Upholds Multimillion Dollar Award to Smoker’s Son

Panel Says Jury Was Properly Instructed on Wrongful Death Damages




The Court of Appeal for this district yesterday affirmed a $12.8 million wrongful death award in favor of the son of a man who previously won a $50 million award from Philip Morris USA Inc.

Div. Five rejected the cigarette maker’s claim that Dylan Boeken’s award for loss of his father’s companionship should be limited because his father, Richard Boeken, was fully compensated by the prior judgment for the injuries that ultimately led to his death.

Richard Boeken 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 in 2005, after Richard Boeken’s death.

Second Suit

In October 2000, Richard Boeken’s wife, Judy 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, Judy Boeken dismissed her action with prejudice, and about a year after that, in January 2002, her husband died. Judy 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.

The California Supreme Court ruled three years ago, in a 4-3 decision, that the widow was foreclosed from pursuing her action due to the dismissal of her prior action.

Third Suit

Her son then filed his own wrongful death suit, claiming only damages for the defendant’s fraudulent concealment of its knowledge of the dangerousness of its products prior to July 1, 1969.

After the jury returned its verdict, Los Angeles Superior Court Judge David Minning denied the defendant’s motion for new trial.

Justice Richard Mosk, writing for the Court of Appeal, said the jury was correctly instructed under California law that a child has the right to recover for loss of a parent’s consortium, and that the defendant’s proposed instruction—limiting damages to those the plaintiff suffered after his father suffered the injuries for which he was fully compensated in his own lawsuit—was correctly rejected.

Mosk distinguished Blackwell v. American Film Co. (1922) 189 Cal. 689, which limited damages to the widow and children of a man who recovered damages for injuries to his leg from an automobile collision. While his own award was on appeal, the man died from post-surgical complications.

The jury in the second action, the high court held, was properly instructed that the decedent’s post-injury “crippled condition” could be considered in assessing the economic losses suffered by his survivors.

Case Distinguish

Mosk emphasized that Blackwell dealt with lost economic support, not with loss of consortium.

“To read Blackwell… as does Philip Morris, makes little sense.  Blackwell dealt with a concern about a double recovery…, which is not an issue in a loss of consortium claim brought by a decedent’s child.  According to Philip Morris, had Richard lived without lung cancer, but been killed instantly by some other tortious means, Dylan would have been entitled to recover against the tortfeasor; but because Richard died a long, agonizing death caused by Philip Morris, Dylan is entitled to no recovery.  Or, as argued by Dylan, under Philip Morris’s contention, if two people are hit in a crosswalk by an automobile and one is killed instantly and the other dies in a week from severe injuries, the child of the first accident victim would be entitled to loss of consortium damages but the child of the second accident victim would not.  Our 1922 Supreme Court could not have intended such an absurd result.”

Daniel P. Collins and Bram Alden of Munger, Tolles & Olson and Patrick J. Gregory of Shook, Hardy & Bacon represented the defendant on appeal. Michael J. Piuze and Geraldine Weiss of the Law Offices of Michael J. Piuze, and Stuart B. Esner and Andrew N. Chang of Esner, Chang & Boyer, represented the plaintiff.

The case is Boeken v. Philip Morris USA, Inc., B236875.


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