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Henley v. Phillip Morris Inc.3/19/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff brought this action for personal injuries allegedly sustained as a result of defendant's tortious misconduct in the manufacture and marketing of cigarettes. The jury returned a special verdict awarding plaintiff $1.5 million in compensatory damages and $50 million in punitive damages. The trial court denied defendant's motions for new trial and judgment notwithstanding the verdict, except that it ordered a new trial on punitive damages unless plaintiff consented to reduce the punitive award to $25 million. Plaintiff consented to the reduction, and defendant filed a timely appeal.
In an earlier opinion this court affirmed the judgment in its entirety. (Henley v. Philip Morris (2001) 93 Cal.App.4th 824, review granted Jan. 29, 2002, S102941 (Henley I).) The Supreme Court granted review and ultimately retransferred the matter to us with directions to "vacate decision and to reconsider the cause in light of Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828 [(Myers)]), and Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856 [(Naegele)])." The cited cases concern only the effects of former Code of Civil Procedure section 1714.45 (§ 1714.45), which we discuss in part I., below. However, because the Supreme Court vacated the previous decision in its entirety, we reiterate it here in full, without substantive modifications other than in the specified section. We conclude that many of defendant's objections, including its claims of error under Myers and Naegele, have not been preserved for appeal. The remaining objections we reject on the merits.
INTRODUCTION AND BACKGROUND
We begin with a fundamental principle overlooked by defendant: "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.) Thus in ascertaining the underlying facts for purposes of appellate analysis, the reviewing court "must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment." (Id. at § 359, p. 408, italics in original.)
Viewed most favorably to the judgment, the evidence shows that plaintiff, who was born in 1946, began smoking cigarettes in 1961 or 1962, at the age of 15, when she "lit up" with some school friends outside a dance. At that time she felt smoking was "cool" and "grown up," provided the pleasure of the forbidden, made her look older, and served as a "rite of passage." Then and for some years thereafter, nobody told her that cigarettes could cause her serious disease. There were no warnings on cigarette packages or in advertisements. Plaintiff was not taught in school about the dangers of tobacco. As a result she believed that cigarettes, which contained " obacco, pure and simple," were "not a harmful product." Nor did she know that cigarettes or nicotine could be addicting. Nothing in the advertising she saw suggested that if she started smoking she might be unable to stop.
The jury could also find that starting no later than Decem
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