9th Circuit considers whether Philip Morris may relitigate liability in wrongful death case

PASADENA — A lengthy argument over whether Philip Morris USA could relitigate its responsibility for the death of a longtime smoker of its Marlboro and Benson & Hedges cigarettes unfolded before a panel of the 9th U.S. Circuit Court of Appeals on Tuesday.

The tobacco giant’s attorney, Lauren R. Goldman, a partner at Mayer Brown LLP, tried to persuade the panel that U.S. District Judge Dale S. Fischer improperly blocked Philip Morris from testing its liability. Bullock v. Philip Morris, 16-55355, 16-55407 (9th Cir., filed Feb. 19, 2014).

In 1988, a California law went into effect that made tobacco companies immune from certain product liability lawsuits. The law was repealed in 1997.

Goldman told the court that the repeal of the law — which was interpreted later by the California Supreme Court to be not retroactive — required the plaintiff to prove the deceased woman’s cancer was caused by smoking before the immunity law went on the books in 1988.

“[S]he had to show that the smoking from 1956 to 1988 caused her injuries,” Goldman argued.

Betty Bullock sued Philip Morris in 2001 after she was diagnosed with lung cancer. A jury eventually awarded $28 billion to Bullock’s daughter, who became the plaintiff when Bullock died in 2003. Punitive damages were later reduced to $28 million and after a California Court of Appeal threw out that number, Bullock was awarded $13.8 million.

In 2014, Bullock’s daughter, Jodie Bullock, filed a second lawsuit against Philip Morris for the wrongful death of her mother. She argued that liability had been established by the first suit, requiring only a damages finding.

Fischer agreed, and ruled that collateral estoppel blocked Philip Morris from relitigating its liability. A jury awarded Jodie Bullock $900,000.

Judges Marsha S. Berzon and Paul J. Watford, who sat on the Tuesday panel with visiting Judge Robert E. Payne of the Eastern District of Virginia, pressed Goldman on Philip Morris’ claim that California interpretation of the immunity repeal was sufficient to merit a new trial.

“How is the issue different?” Berzon questioned Goldman early in the argument. “You may have blown something in the earlier trial by not emphasizing what you want to emphasize now, but the issue was exactly the same, i.e. was this woman’s cancer caused by actions by the tobacco company outside the immune period?”

Goldman pushed back, noting that the first jury did not specifically find that Bullock’s smoking before 1988 caused her lung cancer.

Berzon and Watford told Goldman that the legal argument she was presenting was available to Philip Morris during the first trial. Watford told Goldman she was merely presenting a new “legal theory” and that Philip Morris was on notice to address this legal theory during the first case in 2001.

The panel, though, did make sure that plaintiff’s attorney Janice Mazur of Mazur & Mazur was aware that if it did grant a new trial, Bullock could have a difficult time on remand proving that the personal injury liability finding the first jury made would be enough to establish liability for the wrongful death claims.

“What [Bullock] needs to show is that, all of the smoking she did up until 1988, that would have been sufficient on its own to nonetheless cause the same medical condition that she developed,” Watford told Mazur. “You’re not going to make any progress to us arguing that somehow the jury did make that finding, because it never was asked to.”

The court also considered briefly Bullock’s cross-appeal. She argued that Fischer erred by, among other things, informing the jury that Betty Bullock’s injuries had been compensated by the first verdict.

She also argued that Fischer should have sustained an objection to the defense’s closing argument, which asserted that Bullock failed to properly establish through evidence how much money she was owed.

At the district court, Bullock had moved for a new trial because of these alleged errors, which was denied.