Judge rules $3 billion punitive damages excessive in tobacco suit

By Cadonna M. Peyton, Associated Press writer

LOS ANGELES -- A judge ruled yesterday that a jury's $3 billion verdict against Philip Morris was excessive but the tobacco giant will get a retrial only if the cancer-stricken plaintiff won't accept a settlement of $100 million.

Superior Court Judge Charles W. McCoy ruled on a motion by the tobacco giant arguing that the punitive award was excessive and that the company will likely face similar cases and could not pay $3 billion to every plaintiff.

In June, a jury awarded Richard Boeken, 56, the multibillion-dollar punitive award in addition to $5.5 million in compensatory damages. It was the largest award in an individual lawsuit against a tobacco company.

Boeken, a lifelong smoker with lung cancer, claimed in his lawsuit that he was the victim of a tobacco industry campaign that portrayed smoking as "cool" but concealed its dangers.

Boeken would have to agree to the reduced $100 million settlement by Aug. 24, or Philip Morris will be granted a retrial "solely on the issue of punitive damages," the judge wrote.

McCoy said he supported the jury's thinking, but found the $3 billion sum "legally excessive."

"The jury plainly ... found Philip Morris' conduct reprehensible," the judge wrote. "The record fully supports findings that Philip Morris knew by the late 1950s and early 1960s that the nicotine in cigarettes is highly addictive, that substances in cigarette tar cause lung cancer, and that no substantial medical or scientific doubt existed on these crucial facts."

The judge termed a $100 million punitive award "reasonable."

A receptionist for Philip Morris attorney Maurice Leiter said he was traveling and unavailable for comment.

Tom Harrison, publisher of Lawyers Weekly USA, said he expected the damages to be reduced but was still surprised by the $100 million sum.

"It's staggering," he said. "It's far, far, far more than any other punitive award that has been upheld on appeal in California. Philip Morris will obviously appeal ... and try to get the punitive damages reduced further."

Harrison said that the decision hurts the tobacco company in the court of public opinion and makes it harder to fight.

"When you have a judge say this conduct is worth $100 million in punitive damages it is harder to minimize," he said. "It's easy to criticize a runaway jury. It's harder to criticize a 'runaway' judge."

McCoy, the trial judge, also denied a Philip Morris motion asking for a new trial on grounds that he erred in refusing to allow the company to present evidence of Boeken's past criminal convictions. The convictions, the company contended, challenged the credibility of his claim that he believed smoking was safe.

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