Whiteley v. Philip Morris Inc.

• Decision Date: 07 April 2004
• Docket Number: No. A091444,A091444
• Citation: 117 Cal.App.4th 635,11 Cal.Rptr.3d 807
• Court: California Court of Appeals Court of Appeals
• Parties: Leonard WHITELEY, Plaintiff and Respondent, v. PHILIP MORRIS INC. et al., Defendants and Appellants.

11 Cal.Rptr.3d 807

117 Cal.App.4th 635

Leonard WHITELEY, Plaintiff and Respondent, v. PHILIP MORRIS INC. et al., Defendants and Appellants.

No. A091444

Court of Appeal, First District, Division 2

April 7, 2004

As Modified on Denial of Rehearing April 29, 2004

Heller Ehrman White & McAuliffe, LLP, M. Laurence Popofsky, Curtis M. Caton, David B. Goodwin, Nina A.M. Greeley, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, H. Joseph Escher III, Richard Shively, Shook, Hardy & Bacon, LLP, Gerald V. Barron, San Francisco, Mordecai D. Boone, Tampa, FL, Womble, Carlyle,

Sandridge & Rice, Jeffrey L. Furr, Christopher A. Kreiner, William E.

Latham II, Winston-Salem, NC, for Defendants and Appellants.

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

KLINE, P.J.

Introduction

Defendants Philip Morris Inc. (Philip Morris) and R.J. Reynolds Tobacco Company (R.J. Reynolds) appeal from a judgment of $21,689,117 (including $20 million in punitive damages) following a jury verdict in favor of Leslie Whiteley (Whiteley), a smoker who was diagnosed with lung cancer in 1998 and died in July 2000, and her husband, plaintiff Leonard Whiteley.

Defendant tobacco companies urge us to reverse the judgment, claiming error on several grounds: (1) Under Civil Code, former section 1714.45,¹ as recently interpreted by the California Supreme Court in 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), defendants cannot be liable for fraud, negligent design, or other such product liability claims based on conduct occurring from January 1, 1988 to January 1, 1998. Defendants contend that the trial court prejudicially erred in refusing to instruct the jury, as requested by defendants, that it could not base liability on conduct occurring during this 10-year period.² Defendants also contend that the fraud verdicts are factually and legally flawed, arguing: (2) that much of plaintiff's fraud claim is preempted by the Federal Cigarette Labeling and Advertising Act of 1969 (15 USC §§ 1331-1340), and (3) that the record does not support the jury's finding of reasonable reliance. (4) Defendants also contend the negligence verdict fails because plaintiff failed to present substantial evidence of any safe alternative design or that defendants' alleged failure to produce a safer cigarette caused Whiteley's injury. They further argue the court erred in refusing to instruct the jury in terms of BAJI No. 9.00.6.(5) Finally, defendants attack the punitive damages award.

We shall conclude: (1) The trial court erred in refusing to instruct the jury regarding the 10-year statutory immunity and that the error was prejudicial. (2) The fraud claim was not preempted. (3) Substantial evidence supports the jury's finding reasonable reliance. (4) The negligent design verdict is not supported by substantial evidence that the negligent design of cigarettes was a substantial factor contributing to Whiteley's risk of developing lung cancer. (5) It is unnecessary to address the punitive damages issue at this time. We shall reverse the judgment and remand to the trial court for a new trial on the fraud-related causes of action and for entry of judgment in favor of defendants on the negligent design cause of action.

Facts and Procedural Background

A. Facts

Viewed in the light most favorable to the judgment,³ the evidence shows that Leslie Whiteley, who was born in 1959, smoked her first cigarette with a friend in 1972 at age 13.⁴ She was influenced to start smoking by peer pressure, a desire to fit in and to look cool, as well as by candy and gum cigarettes and advertisements on TV. It was a "rite of passage" and she "had seen adults smoking" and "was curio[us] to try to see what it was like." "[P]eer pressure" was also a factor. "Not just one reason" influenced her to start smoking cigarettes. She recalled cigarette advertisements on TV during her childhood, particularly the Winston song on the Flintstones cartoon series and the "rugged Marlboro Man," and billboards where "everybody looked healthy, white teeth, suntans, having fun." She recalled seeing advertisements for cigarette brands while watching TV during her junior high school years.

As a teenager growing up, Whiteley did not believe that cigarettes could cause serious disease, death or cancer. Her parents never told her that smoking could cause cancer, death or any health risk. Her parents testified they did not know or believe that smoking caused cancer. The only teacher who ever suggested Whiteley should quit smoking was her junior high gym teacher who warned her that smoking would slow her down in running track and field. When the high school dean caught Whiteley smoking in the bathroom, she was suspended for breaking the rules, but the dean did not tell her she should not smoke because of health consequences. The dean testified she was not "aware" at that time that smoking caused cancer.

Whiteley did not recall actually seeing a cigarette package warning until she became pregnant in 1988. At that time, she thought that if smoking actually caused lower than normal birth weight, then, "`Thank God I smoked.'" As a teenager, had she read the warning that "smoking is dangerous," she would not have interpreted that to mean that smoking could cause serious disease. As a 13-year-old, she would not have known what "dangerous" meant in that context: "Will it blow up? Will it burn me?" She wouldn't "know it meant death or illness or disease." As an adult, she heard that the tobacco companies were saying the government made them put the warning labels on cigarettes. She believed the tobacco companies' denials that smoking cigarettes caused cancer and "thought that the government was just sticking their nose into business it didn't belong in." She believed the tobacco companies had said that it was safe to smoke. Although she could not say when she heard this information, she believed the source of this information "must have been a media or — or TV, or I read it somewhere." She believed the tobacco companies, because they manufactured the cigarettes. "[T]hey made them so they knew what they did to people or didn't do to people, so I believed them." The worst she thought cigarettes could do in adults was to cause a "bad cough," because she had seen her grandmother coughing in the morning. She learned that cigarettes could cause something more serious than low birth weight or a cough in an older person "[t]he day the doctor told me I had lung cancer."

When Whiteley began smoking, she smoked from "five" cigarettes to "half a pack" per day. She liked Marlboro cigarettes (a Philip Morris product) because it seemed that "[a]ll teenagers smoked Marlboros." In high school, Whiteley smoked "[a]bout half a pack a day." She switched between Marlboro cigarettes and Camels (an R.J. Reynolds product). In high school, she never thought that she would be a smoker for all of her life. At age 15, she tried to quit for the first time because she did not have money to buy cigarettes, but it did not last.

As an adult, Whiteley began smoking her first cigarette each day as soon as she woke up. She smoked all day long and had to leave nonsmoking places like a church or movie theatre to have a cigarette. She smoked when she was sick with a cold or the flu and even smoked during her pregnancies, including on the way to the hospital. She made at least one serious effort to quit in 1989, when she and Leonard tried to quit together during a camping trip to Yosemite. They tried because they were having children. It was "sheer hell." Whiteley went through "really bad withdrawals," experienced "extreme dizziness," could not "think" or "concentrate," was "very irritated and agitated," and "craved cigarettes very badly." She and Leonard "fought and bickered" until they went back to smoking. According to plaintiff's expert Neal Benowitz, who analyzed Whiteley's smoking history and behavior under the "Fagerstrom Dependence Questionnaire," Whiteley was "highly addicted."⁵ Also opining that she had a "smoking addiction" was her pregnancy doctor, Jeffrey Randa Richardson. Her treating physician Thomas Brugman thought she "probably" was addicted.

Whiteley continued to smoke until February 1998, when she suffered an acute bronchitis episode, which her doctor told her would persist chronically if she did not stop smoking. She nevertheless tried to smoke on the way home from the doctor, but could not breathe. Whiteley first learned that smoking could cause something more serious than a cough or not running as fast, "[t]he day the doctor told me I had lung cancer," in June 1998. Whiteley died on July 3, 2000, at the age of 40.

The jury could find that by the mid-1950's medical authorities agreed and the tobacco industry (including these defendants) knew and admitted privately that smoking causes lung cancer. By about 1957, "all serious scientists" had "accepted" that "smoking was a cause of lung cancer," a fact that thereafter was not "seriously questioned."

In the early 1950's, the studies from medical research began to leak into the popular press. Defendants and other cigarette manufacturers agreed to act together to counter mounting scientific evidence of the health risks of cigarette smoking. Defendants launched a massive public relations campaign — to discredit and distort the truth about smoking and cancer, to deny any link between smoking and serious illness, and to persuade the public that "there is no proof that cigarette smoking is a cause of lung cancer" — the underlying purpose of which was "reassurance of the public." Defendants and the tobacco industry undertook public opinion polling to assist in crafting a public...