A Big Money Decision Against Big Tobacco

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Plaintiff Richard Boeken, with his son Dylan, was awarded $3 billion

Richard Boeken has conquered three major addictions in his life: Heroin, methadone and alcohol. It was the one he couldn’t beat that will eventually kill him.

Boeken, 56, has smoked two packs of Marlboro cigarettes every day for the last 43 years, despite repeated attempts to quit. He now has lung cancer, which has spread to his brain, back and lymph nodes; doctors give him less than a year to live. Who’s responsible for this sad state of affairs? According to a Los Angeles jury, his impending death can be blamed directly on Philip Morris, the manufacturer of Marlboro cigarettes. The reason? Boeken says he believed the company's long-standing insistence that cigarettes are not addictive. And while juries had long been skeptical of individual claims against tobacco companies — why didn't they just quit? — they now seemed more inclined to place the blame on the cigarette manufacturer.

Wednesday, after a seven-week trial during which his lawyers alleged that Philip Morris intentionally glamorized smoking while downplaying its risks, Boeken was awarded $3 billion in punitive damages and $5.5 million in back pay and general damages. It is the largest award ever for an individual plaintiff. The plaintiff’s case was remarkable for its emotional appeal. Instead of leading the jury through a maze of sales charts and financial figures, Boeken’s team attacked the intentions of the tobacco giant, accusing it of a legacy of lies, deception and cold-hearted manipulation. The size of the award, say some legal analysts, is not reflective of a cut-and-dry concept of "fault," but rather of the public’s skepticism of the business of Big Tobacco.

"We’re seeing juries getting angry and trying to send a message to the tobacco companies," says Mark Gottlieb, an attorney at the anti-cigarette Tobacco Products Liability Project at Northeastern University. "But we’re still at a point where the tobacco companies are winning more of these cases than they lose."

This case saw Philip Morris attorneys adopt a new tack; they never denied the carcinogenic effects of tobacco and went so far as to admit their client "makes a dangerous product." Instead, they challenged the idea that PM is somehow responsible for an individual’s decision to smoke.

At pre-verdict news conferences, it seemed the defense attorneys were resigned to the idea of a jury award — the hope was to keep the money damages out of the stratosphere. That hope, of course, was dashed when the jury came back. Their verdict sent PM stock prices downward Thursday as the tobacco sector struggled to take in the psychological effects of such a large award.

The Philip Morris brass was likewise struggling. "This verdict is outrageous and holds our legal system up to ridicule. It is the result of legal errors we believe will require reversal of this verdict," PM vice president and associate general council William Ohlemeyer said in a statement Wednesday. "The jury was given incorrect legal instructions, prevented from hearing important evidence and asked to believe that the plaintiff was only vaguely aware of the risks of smoking and the U.S. Surgeon General's warnings that have appeared on every pack of cigarettes Mr. Boeken smoked for more than 30 years." The company vows to appeal.

That process could stretch on for years, during which time Philip Morris will benefit from a long tradition of judges overturning personal injury awards. Of the six individual plaintiffs who’ve won cases against tobacco companies over the past four years, only one has actually received a part of the initial award. Richard Boeken, whose health is deteriorating rapidly, isn’t holding his breath for a check.