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Ex-Smoker Wins Tobacco Suit

Courts: An L.A. jury orders Philip Morris to pay $850,000 in compensatory damages.

September 27, 2002|MYRON LEVIN | TIMES STAFF WRITER

A Los Angeles jury Thursday ordered tobacco giant Philip Morris Cos. to pay $850,000 to a longtime smoker who is gravely ill with lung cancer, marking the industry's fourth straight loss in California and sixth consecutive West Coast defeat at the hands of an individual smoker.

The award of compensatory damages to Betty Bullock, 64, of Newport Beach was intended to cover economic losses and pain and suffering. Philip Morris also faces an assessment of punitive damages because the jury unanimously found the company guilty of malice and fraud. A separate mini-trial on punitive damages will begin Tuesday in Los Angeles County Superior Court.

A lawyer for Philip Morris expressed disappointment, but company officials said they would reserve comment until the punitive phase is over.

Bullock's lawyer, Michael Piuze, said he was pleased and "looking forward to the punitive-damage portion of this case."

Bullock began smoking in the 1950s at the age of 17, and mostly favored Philip Morris' Benson & Hedges and Marlboro brands. According to testimony, she became a heavy smoker in her 20s and continued until about the time of her cancer diagnosis in February 2001.

The jury of seven women and five men found that Philip Morris had misrepresented and intentionally concealed information about the hazards and addictiveness of its products. The company also was found liable for making a defective product and of failing to warn Bullock of the risks prior to the placement of warning labels on cigarettes in the 1960s. Votes on these questions ranged from 12-0 to 9-3, the minimum needed for a verdict.

The case was the first to be tried in California since a state Supreme Court decision that tobacco officials and Wall Street analysts had hoped might get the once-invincible industry back on the winning track. The Aug. 5 ruling barred smokers from presenting evidence of industry deception from 1988 to 1998, when a legislative ban on product-liability claims against tobacco firms was in place.

However, the ruling reduced only slightly the plaintiff's arsenal of incriminating internal documents, mostly generated in the 1950s, '60s and '70s, and utilized by Piuze throughout the trial.

The case also saw the debut of a defense strategy in which Philip Morris lawyers offered minimal justification for the company's conduct and instead hammered on Bullock's awareness of the risks and failure to quit.

In a radical departure from past practice, defense lawyers called a single witness--retired company scientist Jerry Whidby--instead of the parade of experts who usually appear in such trials. By contrast, Piuze called a host of world-renowned authorities on smoking and health, including British epidemiologist Sir Richard Doll and nicotine expert Neal Benowitz.

Industry sources said the new approach grew from a sense that California jurors, bombarded over the years by state-sponsored anti-smoking and anti-industry ads, are uniquely hostile to the industry and are not receptive to arguments that it has reformed.

Based on the conclusion that "juries in California just aren't going to listen," defense lawyers' strategy was "to go straight to the plaintiff, and talk about the plaintiff with every witness every day they could," said an industry source who would not speak for attribution.

So while Piuze hammered away with incriminating memos, defense lawyer Peter Bleakley argued that Bullock knew the risks and could have quit had she tried.

At first glance, the new strategy seems to have worked no better than the old one, though it remains to be seen what will happen in the punitive-damages phase.

Three other tobacco cases have been tried in California since the lawsuit ban was lifted in 1998. Damages in the three cases, all on appeal, totaled $153 million.

One of the three cases produced the largest jury award ever won by an individual smoker--Topanga resident Richard Boeken, also represented by Piuze. In June 2001, a Los Angeles County Superior Court jury ordered Philip Morris to pay him $5 million in compensatory damages and $3 billion in punitive damages. The judge later pared punitive damages to $100 million, and Boeken, who suffered from lung cancer, has since died.

In Oregon, two cases filed by families of deceased smokers produced damage awards totaling $180 million. These verdicts also are on appeal.

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