- The Washington Times - Monday, March 20, 2006

The Supreme Court yesterday rejected Philip Morris USA’s appeal of a $50 million award for the family of a two-pack-a-day smoker who died of lung cancer at age 57.

The decision clears the way for the largest court-ordered payment in an individual smoking lawsuit.

Philip Morris, owned by Altria Group Inc. and in control of almost half the U.S. cigarette market, had asked that the settlement be declared “unconstitutionally excessive” and to have the high court clarify the rules for deciding punitive damages in future cases.

But the justices moved unanimously and without comment to let stand the $50 million settlement and the 2001 ruling of a state court jury in California that found the Richmond tobacco giant guilty of fraud, negligence, misrepresentation and selling a defective product.

Douglas Blanke, director of the Tobacco Law Center at William Mitchell College of Law in Minnesota, said the case was one of several showing “that the tide has turned in the 50 years of tobacco litigation in this country and that increasingly jurors are not buying the defenses that have served the tobacco interests for decades.”

Steven B. Rissman, associate general counsel and a spokesman for Altria Corporate Services, acknowledged the company will have to pay the damages, but noted that “denial of review by the Supreme Court has no import, no significance in terms of a ruling on the merits.”

“In terms of overall perspective, this judgment is part of a small group of cases that were lost in the California trial courts between 1999 and 2001,” Mr. Rissman said. “Since then, Philip Morris USA has won five consecutive cases in the California trial courts, so in many ways, this is kind of the old cases cycling through the appellate process.”

The case involved Richard Boeken, an addicted smoker who took up the habit at age 13 and tried everything from hypnosis to classes and nicotine gum in an effort to quit. He switched to Marlboro Lights in the belief they were safer. He smoked even in his final days, after his lung cancer spread to his brain. His mother was also a smoker who died of cancer.

Mr. Boeken won the settlement after being diagnosed with cancer but before his death in 2002. The jury initially awarded him $3 billion in punitive damages and $5.5 million in compensatory damages.

However, the trial judge reduced the punitive award to $100 million, and the California appeals court further reduced it to $50 million. Both sides appealed to the Supreme Court and both had their petitions rejected yesterday.

In its appeal, Philip Morris argued that $50 million was “unconstitutionally excessive,” citing a 2003 Supreme Court ruling that punitive damages in such cases shall be “reasonable” and “proportionate to the amount of harm” suffered by a smoker.

“The reason behind [that] requirement is to protect the defendant from getting hit with multiple punitive damage awards in successive cases for the same conduct,” Mr. Rissman said. “It’s not a class action, it’s one individual … the company in other words is not going to be punished for conduct of people who weren’t involved in the case.”

cThis article is based in part on wire service reports.

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