L.A. County Readies for Its 1st Tobacco Trial
Richard Boeken started smoking at the age of 13, and now is 56 and gravely ill with cancer--a sad but familiar tale. Unlike thousands of others who have suffered in silence, Boeken's story is about to be told to a jury, in the first smoking and health cas
Opening arguments are expected today in Los Angeles Superior Court in Boeken's fraud and negligence suit against Philip Morris Inc., whose Marlboro cigarettes, the world's most popular brand, were Boeken's favorites during his 40 years of smoking.
Three other tobacco trials simultaneously will be in session this week in New York, New Jersey and Florida.
Boeken, a self-employed securities broker from Topanga, was diagnosed 18 months ago with lung cancer that has since spread to his brain. He says he became hooked as a boy in the 1950s, when there were no warnings on cigarettes, and athletes and celebrities pushed smoking on TV as virile and suave.
Boeken is seeking compensatory and punitive damages from Philip Morris, the nation's biggest cigarette maker, claiming the company along with its rivals lied to smokers and the government about the hazards and addictive nature of smoking.
Philip Morris says Boeken understood the risks, made a choice to go on smoking and is not entitled to damages.
The trial before Superior Court Judge Charles W. McCoy and 12 jurors is expected to last four to six weeks.
Although the tobacco industry's pockets are too deep for it to worry about any single lawsuit, the Boeken case will be closely watched by the industry and Wall Street analysts, amid signs that California courts may be uniquely hostile territory.
The only two tobacco cases tried in the state since the lifting of a lengthy ban on such suits resulted in dramatic defeats for Big Tobacco. In 1999, a San Francisco jury ordered Philip Morris to pay $51.5 million to lung cancer victim and former Marlboro smoker Patricia Henley--an award trimmed by the trial judge to $26.5 million.
Then in March 2000, another San Francisco jury ordered Philip Morris and R.J. Reynolds Tobacco Co. to pay $21.7 million to lung cancer patient Leslie J. Whiteley. Whiteley did not begin smoking until the 1970s--after warnings were placed on cigarette packs--making her victory all the more alarming to the industry. She died last summer at the age of 40, after the cancer had spread to her liver and her brain.
Appeals are pending in both the Henley and Whiteley cases and in a third big West Coast case--a $32-million verdict against Philip Morris in Portland, Ore.
The Boeken case is significant "because the last two cases in California were major losses for the U.S. tobacco industry," said Martin Feldman, an analyst with Salomon Smith Barney. A successful defense would be a shot in the arm for cigarette makers, since their image in California is worse than almost anywhere else in the country, Feldman said.
On the other hand, a Boeken victory, on top of the other plaintiff wins, would "send a very strong message to plaintiffs' firms" in California that anti-tobacco cases are viable, said Ed Sweda of the Tobacco Products Liability Project, a Boston-based group that promotes suits against the industry.
For a decade, tobacco companies were immune from lawsuits in California, under a 1987 tort reform law that became notorious as "the napkin deal" because it was sketched out on a napkin at a Sacramento restaurant.
The benefits to Big Tobacco became apparent almost as soon as legislators lifted the ban, when both Henley and Whiteley won their cases.
In the Boeken case, plaintiffs' lawyer Michael Piuze will argue that Boeken became a heavy smoker in the late 1950s, when there were no health warnings and smoking by young males "was not only accepted but expected."
From the 1960s through the 1990s, Boeken allegedly made numerous efforts to quit--trying hypnosis, smoking cessation classes and nicotine patches and gum, but he never managed to stop for more than a few weeks.
Piuze also will argue that the industry's aggressive efforts to belittle the scientific evidence found a willing audience in Boeken and others who were eager to rationalize their habit.
"When people are addicted to things," they are apt "to tell themselves stories," Piuze said. "Nicotine . . . is an extraordinarily powerful addictive force."
Philip Morris contends that any public statements by the industry were drowned out in the tidal wave of anti-smoking messages from the government, health groups and news media.
"Smoking is unpopular and tobacco companies are unpopular, and that makes our job more challenging," said Maurice A. Leiter of Arnold & Porter, lead trial counsel for Philip Morris. "But we believe that nothing Philip Morris said or did made Mr. Boeken smoke or prevented him from quitting."
The case begins with cigarette makers on a modest winning streak after their crushing defeat in the Engle case in Miami last July, when jurors ordered the companies to pay $144.8 billion in punitive damages to an immense class of Florida smokers who became sick or died after becoming addicted to smoking. The award was many times larger than any prior civil verdict, and it is under appeal in the Florida courts. Cigarette makers have won several individual trials since then.
Along with Boeken, opening arguments are expected Monday in a New Jersey case against Philip Morris and R.J. Reynolds by a man whose wife died of lung cancer. Meanwhile, the fraud and racketeering trial of Empire Health Choice (formerly Blue Cross & Blue Shield of New Jersey) against the tobacco industry is beginning its second week in U.S. District Court in Brooklyn.
And in Miami, a verdict may come as early as this week in the first of more than 3,000 suits by flight attendants who claim they were sickened breathing the air in smoky airline cabins.
A class-action suit on behalf of the flight attendants was settled in 1997 for $349 million, but without a penny going to class members. The deal provided $300 million for health research and $49 million for legal fees, and set ground rules for resolving claims of individual attendants.
Those rules bar the flight attendants from seeking punitive damages. But they also require the companies to carry the burden of proving secondhand smoke does not cause disease, and to waive the time limit on filing of claims.
The first individual trial, that of former Trans World Airlines flight attendant Marie J. Fontana, 59, is nearing an end in Miami-Dade Circuit Court. Fontana suffers from sarcoidosis and other respiratory ailments. In court, she has been tethered to an oxygen tank, and at one point she had to halt her testimony because she was coughing up blood.