Jury awards damages to son of longtime smoker who died of cancer

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September 13, 2011

Jury awards damages to son of longtime smoker who died of cancer 

After a jury verdict for the father against Philip Morris—including punitive damages—he died, leaving a wife and son. The son later filed his own lawsuit against the cigarette manufacturer, seeking damages for loss of his father’s love, affection, and guidance. The jury awarded $12.8 million. Boeken v. Philip Morris USA, Inc.

Richard Boeken began smoking cigarettes in 1957 at age 13, and soon became addicted to nicotine. He smoked two packs of Marlboro cigarettes a day for the next 40 years, although he attempted several times to quit. In 1999, Boeken was diagnosed with lung cancer, which spread to his brain, spine, and lymph nodes.

He sued Philip Morris, which manufactured the Marlboro brand, asserting strict liability, negligence, breach of warranty, fraudulent concealment, and false representation. Among other things, Boeken claimed that Philip Morris failed to warn about nicotine’s addictive nature and of the known hazards of smoking. He also alleged that the company acted negligently and fraudulently and had conspired to conceal the risks. A jury awarded about $5.54 million in compensatory damages and $3 billion in punitive damages. The punitive damages award was reduced to $50 million. Boeken died in 2002 at age 57, leaving a wife and a 10-year-old son, Dylan.

In 2006, Dylan Boeken filed a wrongful death action against Philip Morris, seeking damages for loss of his father’s love, affection, and guidance. The court rejected the defendant’s argument that liability had to be re-proven and ruled that the case would be tried on damages only. The court informed the jury that there was a prior verdict and that it was appealed, that Richard Boeken died while the appeal was pending, that the verdict was upheld on appeal, and that the verdict was paid before Dylan Boeken’s case was filed. The jury was not told the amount of the prior verdict or the payment.

The jury awarded $12.8 million. Counsel estimates that prejudgment interest could bring the total to $19.2 million.

Citation: Boeken v. Philip Morris USA, Inc., No. BC353365 (Cal., Los Angeles Co. Super. Aug. 9, 2011).

Plaintiff counsel: AAJ member Michael J. Piuze, Los Angeles.


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