Henley v. Philip Morris Inc.

• Decision Date: 07 November 2001
• Docket Number: No. A086991.,A086991.
• Citation: 93 Cal.App.4th 824,113 Cal.Rptr.2d 494
• Court: California Court of Appeals Court of Appeals
• Parties: Patricia HENLEY, Plaintiff and Respondent, v. PHILIP MORRIS INC., Defendant and Appellant.

113 Cal.Rptr.2d 494

93 Cal.App.4th 824

Patricia HENLEY, Plaintiff and Respondent, v. PHILIP MORRIS INC., Defendant and Appellant.

No. A086991.

Court of Appeal, First District, Division 4.

November 7, 2001.

Certified for Partial Publication.^*

Review Granted January 29, 2002.

Gerald V. Barron, Lucy E. Mason, Shook, Hardy & Bacon L.L.P., San Francisco, M. Laurence Popofsky, Curtis M. Caton, David B. Goodwin, San Francisco,

Wayne Stephen Braveman, Heller, Ehrman, White & McAuliffe, Los Angeles, for Appellant.

Daniel Upham Smith, Los Angeles, Ted W. Pelletier, Law Offices of Daniel U. Smith, Harry F. Wartnick, Madelyn Joyce Chaber, Wartnick, Chaber, Harowitz, Smith & Tigerman, Concord, for Respondent.

SEPULVEDA, J.

Plaintiff brought this action for personal injuries allegedly sustained as a result of defendant's tortious misconduct in the manufacture and marketing of cigarettes. The jury returned a special verdict awarding plaintiff $1.5 million in compensatory damages and $50 million in punitive damages. The trial court denied defendant's motions for new trial and judgment notwithstanding the verdict, except that it ordered a new trial on punitive damages unless plaintiff consented to reduce the punitive award to $25 million. Plaintiff consented to the reduction, and defendant filed a timely appeal.

Defendant raises a host of objections, many not preserved for appeal. Its primary contentions are that (1) all of plaintiffs claims are barred by the immunity conferred on tobacco manufacturers from 1988 to 1998 by former Civil Code section 1714.45 (section 1714.45);¹ (2) the jury was misinstructed on the limitations imposed on plaintiffs claims by the Public Health Cigarette Smoking Act of 1969, title 15 United States Code section 1331 et seq. (the 1969 Act); (3) each of plaintiffs claims is deficient in various particulars; and (4) the punitive damage award cannot be sustained. We find no prejudicial error, and affirm the judgment.

INTRODUCTION AND BACKGROUND

We begin with a fundamental principle persistently overlooked by defendant: "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.) Thus in ascertaining the underlying facts for purposes of appellate analysis, the reviewing court "must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment." (Id. § 359, p. 408, italics in original.)

Viewed most favorably to the judgment, the evidence shows that plaintiff, who was born in 1946, began smoking cigarettes in 1961 or 1962, at the age of 15, when she "lit up" with some school friends outside a dance. At that time she felt smoking was "cool" and "grown up," provided the pleasure of the forbidden, made her look older, and served as a "rite of passage." Then and for some years thereafter, nobody told her that cigarettes could cause her serious disease. There were no warnings on cigarette packages or in advertisements. Plaintiff was not taught in school about the dangers of tobacco. As a result she believed that cigarettes, which contained "[t]obacco, pure and simple," were "not a harmful product." Nor did she know that cigarettes or nicotine could be addicting. Nothing in the advertising she saw suggested that if she started smoking she might be unable to stop.

The jury could also find that starting no later than December 1953, defendant and other cigarette manufacturers agreed to act together to counter mounting scientific evidence about the health risks of cigarette smoking. By the time plaintiff began smoking, defendant knew that tobacco contained numerous carcinogenic substances as well as flavoring additives that also produced carcinogenic compounds upon combustion. Tobacco manufacturers were also aware of epidemiological studies that showed a strong correlation between smoking and the incidence of lung cancer. Yet they launched a concerted public relations campaign to deny any link between smoking and serious illness. A major part of this strategy was the creation of a "research institute" that would, as the public was told, attempt to find the truth about smoking and health—though in fact it was permitted to conduct very little research that might confirm a link, serving mainly, as the jury was entitled to find, to gather ammunition against tobacco's detractors. Other strategies included manipulating the mass media to suppress or make light of adverse news developments, such as new studies or reports.

The jury could also find that defendant engaged in saturation advertising, much of it consciously targeting the teenage audience from which new ("replacement") smokers had to come. Defendant knew that persons who did not begin smoking during their teen years were unlikely to do so. In particular, defendant sold the brand of cigarette plaintiff preferred, Marlboro, using symbols of the independence, autonomy, and mature strength for which teenagers were understood to yearn. The jury could find that these targeted teenage consumers possessed less critical judgment, and were more receptive to marketing manipulation generally, than might be the case with adults. The jury could find that teenagers who went past the experimentation phase became addicted to tobacco, as a result of which they found it extremely difficult to stop smoking and often suffered impaired judgment with respect to the consequences of continuing to do so.² The jury could find that the strategy of marketing to teenagers and causing them to become addicted to its products was central to the tremendous success and profitability of the Marlboro brand in particular, helping defendant to become one of the largest and most successful corporations in the world.

In 1966, as evidence of health risks mounted, Congress required that cigarette packages bear the relatively mild warning that smoking "may be hazardous." In the 1969 Act, Congress required a somewhat stronger warning and required that it appear in advertising as well as on packages. At the same time, Congress explicitly preempted any state law imposing a "requirement or prohibition with respect to advertising or promotion" of cigarettes— language that has since been construed to preempt many but not all common-law tort claims. Although the warnings have since been further strengthened, this partial federal immunity remains in place, and is one of defendant's major defenses here. (See section II, below.)

In 1988 the tobacco industry acquired a safe harbor under California law when, riding the coattails of a legislative compromise, tobacco was listed among "common consumer products" in former section 1714.45, a statute construed the following year to create an almost complete "immunity" from tort liability. The Legislature repealed that protection effective January 1, 1998, but defendant contends that it nonetheless applies to defeat most or all of plaintiffs claims here. (See section I, below.)

The jury was entitled to find that well before these legislative defenses became applicable, plaintiff had become an addicted smoker with sharply impaired judgment and will where cigarettes were concerned. Plaintiff testified that on the subject of cigarette smoking and health, "my brain wasn't going to register anything that anybody said." When she saw the first package warnings, she minimized the perceived "degree[ ] of danger," thinking to herself that it was also "dangerous to walk across the street." She testified that while she heard the United States Surgeon General was saying things about cigarettes, she also knew "that the tobacco companies were saying different." As a result, the package warning "didn't faze me one way or the other. I wasn't going to give the cigarettes up at that point."

Plaintiffs first regular brand of cigarettes was Marlboro, and it remained her favorite brand throughout almost all of her 35 year smoking history. From age fifteen until she was about 43 years old (around 1989), she apparently smoked one-and-a-half to two packs a day of "Marlboro Red," a brand rated to deliver relatively high amounts of tar and nicotine. At that age, however, she switched to Marlboro Lights, a lower-tar brand, on what the jury was entitled to view as the direct advice of a Philip Morris agent. Plaintiff testified that around that time she began to hear that "low-tar cigarettes were better. You wouldn't get as much tar and nicotine and, you know, their advertising on the low-tar cigarettes was really out there, [¶] I'm thinking, `Well, okay. Maybe there's something to this.' So when I was approximately 43, I decided that, `Well, I'll check into this and maybe I'll change from the Reds to the Lights.' [¶] So I did indeed call the Marlboro, Philip Morris company and expressed, you know, my concerns as to, `Is it really true? Is there less tar in this or less nicotine?' [¶] And I was assured at the time that if I was concerned that, yes, I could switch to the Lights...." She did so and, in a few weeks, had more or less doubled her intake, to three-and-a-half packs a day.

By mid-October 1997 plaintiff "was feeling really bad" and "down for the count with what I thought was heavy-duty flu." She was diagnosed in February 1998 with small-cell carcinoma of the lung. The jury was more than entitled to find that this affliction was directly caused by cigarette smoking.

ANALYSIS

I. Immunity Under Former Section 1714.45³

A. Nature of Error, Standard of Review.

Defendant contends that the trial court erred by "refus[ing] to apply" the immunity granted to tobacco manufacturers prior to 1998 by former section 1714.45. This is not an...