Boeken v. Philip Morris Inc.
| Decision Date | 21 September 2004 |
| Docket Number | No. B152959.,B152959. |
| Citation | 19 Cal.Rptr.3d 101,122 Cal.App.4th 684 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Judy BOEKEN, as Trustee, etc., Plaintiff and Respondent, v. PHILIP MORRIS INCORPORATED, Defendant and Appellant. |
Arnold & Porter, Murray R. Garnick, Robert A. McCarter, Washington, DC, Ronald C. Redcay and Maurice A. Leiter, Los Angeles, for Defendant and Appellant.
Michael J. Piuze, Los Angeles, for Plaintiff and Respondent.
Richard Boeken commenced this action on March 16, 2000, by filing a ten-count complaint for personal injuries caused his cigarette addiction.1 The complaint alleges that Boeken began smoking in 1957, when he was a minor, that he smoked Marlboro and Marlboro Lights, both manufactured by Philip Morris USA, Inc., and that he was diagnosed with lung cancer in 1999.
The cause was tried to a jury under theories of negligence, strict product liability, and fraud, over approximately nine weeks, beginning in March 2001. The jury found that prior to 1969, Philip Morris's product was defective either in design or by failure to warn, and that it caused Boeken's injuries. The jury also found that Boeken was injured as a result of Philip Morris's fraud by intentional misrepresentation, fraudulent concealment, false promise, and negligent misrepresentation; and that he justifiably relied on Philip Morris's fraudulent utterances and concealment. The jury awarded $5,539,127 in compensatory damages, and assessed punitive damages in the sum of $3 billion dollars.
Philip Morris's motion for judgment notwithstanding the verdict was denied. On August 9, 2001, Philip Morris's motion for new trial was granted solely upon the issue of punitive damages, and conditionally denied, subject to Boeken's acceptance of a reduction in punitive damages to the sum of $100 million. Boeken consented to the reduction, and an amended judgment was entered on September 5, 2001. Philip Morris and Boeken then filed timely notices of appeal.
Philip Morris assigns seven categories of error upon which it contends that it is entitled to a reversal. First, Philip Morris contends that Boeken's fraud causes of action remained unproven, because there was insufficient evidence that Boeken heard or relied on any particular false statement or that any reliance was justifiable, and because Philip Morris had no duty to disclose any information found to have been fraudulently concealed.
Second, Philip Morris contends that Boeken failed to prove the elements of product liability, whether measured under the "risk-benefit" test or the "consumer expectations" test, and that the trial court erred in instructing with BAJI No. 9.00.5 instead of 9.00.6.
Third, Philip Morris contends that the trial court erred in refusing to allow it to impeach Boeken with evidence of his 1992 felony conviction.
Fourth, Philip Morris contends that some of Boeken's claims were preempted by federal law regulating cigarette advertising, that the trial court should have excluded evidence and argument related to youth-targeted advertising, and that the trial court should have instructed the jury not to consider such evidence.
Fifth, Philip Morris contends that the trial court abused its discretion by removing a juror during deliberations.
Sixth, Philip Morris contends that Civil Code section 1714.45 bars all or part of Boeken's claims.
Philip Morris's final contention is that the punitive damage award was excessive pursuant to federal and state constitutional law. Boeken's appeal requests that we reinstate the jury's punitive damage award.
Except for the final contention, we reject all of Philip Morris's claims. We agree that the award for punitive damages, even after reduction by the trial court, is excessive and we affirm the grant of a new trial unless Boeken accepts a further remittitur to the amount of $50 million.
We shall discuss each contention, but not strictly in the same order it is asserted in the briefs, since some issues are interrelated and thus more easily discussed together.
Philip Morris contends that there was insufficient evidence of Boeken's reliance on any false statements or nondisclosures to support a finding of fraud. In particular, relying upon Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 23 Cal.Rptr.2d 101, 858 P.2d 568 (Mirkin), Philip Morris contends that the evidence was insufficient to prove that Boeken was aware of specific misrepresentations and acted upon those specific misrepresentations.2 Philip Morris also contends that the evidence was insufficient to establish a duty to disclose the concealed information.
The jury found against Philip Morris on the fraud claims of intentional misrepresentation, concealment, false promise, and negligent misrepresentation. Philip Morris challenges only the evidence of its duty to disclose and of Boeken's reliance, not the evidence establishing that it made misrepresentations, made misleading statements and concealed the facts that would have clarified them, or that it made a false promise, all with an intent to defraud. Indeed, Philip Morris does not challenge or even summarize most of the large volume of evidence showing that it was aware of the health hazards and addictive nature of its tobacco products, or that it undertook a campaign to disseminate falsehoods about smoking and health, and to conceal the truth from the public, including Marlboro smokers such as Boeken, in order to mislead them into believing that their cigarettes were safe and not addictive.
(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.) The judgment is presumed to be correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, 275 Cal.Rptr. 797, 800 P.2d 1227.) And we presume that the record contains evidence to sustain every finding of fact. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881, 92 Cal.Rptr. 162, 479 P.2d 362.) It is the appellant's burden to demonstrate that it does not. (Ibid.)
In furtherance of its burden, the appellant has the duty to fairly summarize the facts in the light most favorable to the judgment. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881, 92 Cal. Rptr. 162, 479 P.2d 362.) This means that the trial evidence must be summarized in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference, and resolving any conflicts in support of the verdict. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.)
Further, the burden to provide a fair summary of the evidence (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290, 130 Cal.Rptr.2d 436.) The record in this case is very complex. The testimony heard by the jury spans 25 of the 40 volumes of reporter's transcripts. There are also 75 volumes of clerk's transcripts in the record. Boeken has provided copies of approximately 40 exhibits admitted at trial, but it appears that there were hundreds more shown to the jury that have not been transmitted to this court.
In addition, portions of Boeken's videotaped deposition were played for the jury, and the parties have lodged a redacted transcript of the deposition, containing what appears to be 300 pages. Videotaped interviews of two other witnesses were lodged at our request, and were not transcribed.
Nevertheless, Philip Morris has provided only the briefest summary of the trial evidence, and has summarized only those facts which support its theories. Almost all of Philip Morris's factual summary consists of evidence favorable to its position—evidence smoking that the dangers of smoking were well known by the public in the 1950s and 1960s; and other evidence from which a jury could reasonably infer that Boeken understood the health risks of smoking.
Even if Philip Morris were to show that the inferences it wishes us to draw are reasonable, we would have no power to reject the contrary inferences drawn by the jury, if they are reasonable as well. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429, 45 P.2d 183.) And a recitation solely of Philip Morris's own evidence is not a fair summary for purposes of determining whether any inferences drawn by the jury are reasonable and supported by substantial evidence. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881, 92 Cal.Rptr. 162, 479 P.2d 362.)
Philip Morris's failure to provide a fair and complete summary of the evidence supporting the judgment results in forfeiture of contentions based upon the sufficiency of the evidence. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881, 92 Cal.Rptr. 162, 479 P.2d 362.) We must assume that the missing evidence, including the evidence supplied by missing exhibits, was sufficient to support the jury's findings. (Supreme Grand Lodge etc. v. Smith (1936) 7 Cal.2d 510, 513, 61 P.2d 449.)
In lieu of tendering the proper summary, Philip Morris suggests that Boeken's counsel, Mr. Piuze, conceded the absence of evidence of reliance and causation during argument on post-trial motions when he answered, "No," to the following question by the court: "The question is can the plaintiff point to a single statement made by Philip Morris that ultimately reached Mr. Boeken that can be traced backward through a definite causal link back to Philip Morris?" But the discussion of the matter did not end with that negative response. Piuze went on to explain to the court that the issue of...
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...No. 7 responded. Although "eye closures, head nodding, and slumping in one's chair" may evidence sleeping, Boeken v. Phillip Morris, Inc., 122 Cal. App. 4th 684, 703 (2004), the court found no indication that Juror No. 7 was in fact asleep during the trial. Petitioner, proceeding pro se, st......