California Supreme Court
Feb. 1, 2008
Court Tosses Big Tobacco Jury Verdict
At one time it was the largest jury verdict that California had ever seen in a sick-smoker case against big tobacco. On Wednesday, it was little more than ashes. A state appeals court threw out a $28 million award against Philip Morris USA and ordered a new trial on punitive damages for the family of lifelong smoker Jodie Bullock.
Daily Journal Staff Writer
This article appears on Page 1.
At one time it was the largest jury verdict that California had ever seen in a sick-smoker case against big tobacco. On Wednesday, it was little more than ashes.
A state appeals court threw out a $28 million award against Philip Morris USA and ordered a new trial on punitive damages for the family of lifelong smoker Jodie Bullock. Bullock v. Philip Morris USA, B164398A.
The 2nd District Court of Appeal based its ruling on a decision last year by the U.S. Supreme Court in a different case involving the same tobacco company. In Philip Morris v. Williams, 2007 DJDAR 2233, the high court said defendants can't be punished for harm caused to smokers who weren't part of the lawsuit.
Lifelong Smoker
In 2002, a Los Angeles Superior Court jury awarded a whopping $28 billion to Betty Bullock, a lifelong smoker who was diagnosed with lung cancer in 2001. Bullock died in 2003.
It was the largest verdict ever for a single plaintiff in a sick-smoker case.
The jury verdict was later trimmed to $28 million.
Wednesday's ruling left intact only $850,000 in compensatory damages and the jury's finding that Philip Morris was guilty of oppression, fraud or malice.
Punitive Damages
The appeals court ordered a new trial on punitive damages, saying Judge Warren L. Ettinger should have instructed the jury that they could not consider harm done to smokers other than Bullock.
Ettinger had rejected the tobacco company's proposed jury instruction on that issue.
Philip Morris was in the process of reviewing the ruling and declined to comment, said Dawn Schneider, a spokeswoman for Altria, parent company of Philip Morris.
Lawyers for Arnold & Porter, the firm that represented the company, could not immediately be reached for comment.
Bullock was represented by prominent plaintiffs' attorney Michael J. Piuze, who was not available for comment Wednesday, his office said.
But attorneys who wrote "friend of the court" briefs for both sides called it an important ruling that reveals the impact of the U.S. Supreme Court's decision in Williams.
"It really reflects a trend of lower courts taking the Williams decision quite seriously and requiring new trials on punitive damages," said Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher in Los Angeles, who represented the U.S. Chamber of Commerce.
On retrial, Philip Morris can try to limit the amount of information the jury hears about health problems of other smokers, he said.
"Williams gives Philip Morris a lot to work with in a new trial," he said.
However, a lawyer who represented California Employment Attorneys said it could be difficult to put limits on the testimony.
"I think the U.S. Supreme Court created a form of legal gymnastics when it held that juries may consider harm directed towards others when determining the reprehensibility of conduct but cannot actually punish a defendant for harm directed at others," said Jeffrey K. Winikow of Los Angeles.
Winikow said he was gratified that the court affirmed that the evidence can be admitted in the first place.
"This case at least reaffirms that juries get to hear that misconduct is not an isolated instance but part of a grander scheme or design," Winikow said.
Laura Ernden
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