Metropolitan News-Enterprise


Monday, October 21, 2013


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Supreme Court Denies Publication of Ruling Upholding Multimillion Dollar Award to Smoker’s Son


By a MetNews Staff Writer


The state Supreme Court has declined to order publication of a Court of Appeal ruling that affirmed a wrongful death award in favor of the son of a longtime smoker, whose father won a huge award from the same cigarette maker before his death.

The justices, at their weekly conference in San Francisco Wednesday, unanimously denied a request by attorney Ian Herzog, who did not represent a party in the case, to publish the July 9 opinion of Div. Five in Boeken v. Philip Morris USA, Inc., B236875.

The Court of Appeal affirmed a $12.8 million wrongful death award in favor of Dylan Boeken, whose father Richard Boeken had previously won a $50 million award from Philip Morris USA Inc. The panel rejected the defendant’s claim that the plaintiff’s award for loss of his father’s companionship should be limited because the elder 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.

In his wrongful death suit, Dylan Boeken sought damages solely for the defendant’s fraudulent concealment of its knowledge of the dangerousness of its products prior to July 1, 1969.

Justice Richard Mosk, writing for the Court of Appeal, said the jury in that suit 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.

Mosk, however, emphasized that Blackwell dealt with lost economic support, not with loss of consortium, saying Philip Morris’ contention “makes little sense” and would cause “an absurd result.”

“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,” Mosk wrote. “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.”

In other conference action, the justices granted review in Mendiola v. CPS Security Solutions, Inc. (2013) 217 Cal. App. 4th 851.

The case concerns the compensation of “Trailer guards,” who patrol construction sites by day and must remain at those sites overnight in order to respond to emergencies, but are permitted to sleep during those overnight hours.

This district’s Court of Appeal, Div. Four, held that the guards must be compensated for the nighttime hours spent on the jobsites during the week, but that their employer may deduct eight hours for sleep time on weekend days.


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