Henley v. Philip Morris Inc.

Decision Date20 January 2004
Docket NumberNo. A086991.,A086991.
Citation9 Cal.Rptr.3d 29,114 Cal.App.4th 1296
CourtCalifornia Court of Appeals Court of Appeals
PartiesPatricia HENLEY, Plaintiff and Respondent, v. PHILIP MORRIS INC., Defendant and Appellant.

Shook, Hardy & Bacon, Gerald V. Barron, Lucy E. Mason, San Francisco, Mordecai Dempsey Boone, Tampa, FL, Arnold & Porter, Ronald C. Redcay, Los Angeles, Murray R. Garnick, Robert A. McCarter, Washington, DC, for Appellant.

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


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.

In our original opinion we affirmed the judgment in its entirety. (Henley v. Philip Morris (2001) 93 Cal.App.4th 824, 113 Cal.Rptr.2d 494, review granted Jan. 29, 2002, S102941 (Henley I).) The Supreme Court granted review and ultimately retransferred the matter to us with directions to "vacate [our] decision and to reconsider the cause in light of Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 123 Cal.Rptr.2d 40, 50 P.3d 751 [(Myers)]), and Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 123 Cal.Rptr.2d 61, 50 P.3d 769 [(Naegele)])." We concluded that many of defendant's objections, including its claims of error under those cases, had not been preserved for appeal. (See pt. I., below.)

Defendant again petitioned the California Supreme Court, which again remanded the matter for reconsideration, this time in light of State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (Campbell). In that case the United States Supreme Court elaborated considerably upon the federal constitutional principles constraining civil punitive damage awards. We have concluded that in light of that decision, the $25 million in punitive damages awarded in this matter cannot be sustained on the present record, but that an award of $9 million would satisfy the constitutional standards enunciated in that case. Accordingly we will reverse for a new trial on punitive damages unless plaintiff agrees to a reduction of the judgment to reflect such smaller award. Following a further transfer from the Supreme Court, we have made certain technical corrections to the dispositional language. In all other respects we reiterate our previous decision.


We begin with a fundamental principle 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. at § 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.1 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 1969, 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 pt. 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.2 The Legislature repealed that protection effective January 1, 1998, but defendant contended below that it nonetheless applied to bar most or all of plaintiff's claims. (See pt. I., below.)

The jury would have been 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."

Plaintiff's first regular brand of cigarettes was Marlboro, and it remained her favorite brand throughout almost all of her 35-year smoking history. From age 15 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...

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9 cases
  • Bullock v. Philip Morris Usa, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • April 21, 2006
    ...to have identical issues." (Boeken, supra, 127 Cal.App.4th at p. 1701, 26 Cal.Rptr.3d 638.) The Boeken court noted that in Henley v. Philip Morris, Inc., No. A086991 (previously published at 114 Cal.App.4th 1429, 9 Cal.Rptr.3d 29, review granted Apr. 28, 2004, 12 Cal. Rptr.3d 591, 88 P.3d 4......
  • Boeken v. Philip Morris Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • September 21, 2004
    ...Henley v. Philip Morris, Inc., No. S123023, review dismissed September 15, 2004, formerly published at 114 Cal.App.4th 1429; see now, 9 Cal.Rptr.3d 29. 28. See the MSA online at 29. The MSA provides for calculation of shares by an independent auditor. 30. This includes Philip Morris's compl......
  • Jowers v. Boc Group, Inc.
    • United States
    • U.S. District Court — Southern District of Mississippi
    • April 1, 2009
    ...eviscerate true warnings"—and that this strategy amounted to a willful, wanton or reckless disregard for the safety of others. In Henley v. Philip Morris Inc.,178 the defendant did provide to the plaintiff "some warning" that use of its product could be hazardous, starting in 1966 with the ......
  • Boeken v. Philip Morris Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • April 1, 2005
    ...117 Cal.App.4th 635, 11 Cal.Rptr.3d 807, has been reversed by the court of appeal. In the other, Henley v. Philip Morris, Inc., No. A086991 (9 Cal.Rptr.3d 29, review dismissed Sept. 15, 2004), the Court of Appeal reversed the punitive damage award to $9 million, conditioned upon the plainti......
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1 books & journal articles
  • Pursuing Public Health Through Litigation.
    • United States
    • February 1, 2021
    ...2001, "about 30 percent of verdicts handed down in [tobacco] cases involving individual claims were in favor of plaintiffs"). (101.) 9 Cal. Rptr. 3d 29 (Ct. App. 2004); Patrick Luff, Regulating Tobacco Through Litigation, 47 Ariz.St. L.J. 125,152-53 (2015) (discussing (102.) 26 Cal. Rptr. 3......

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