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Boeken v. Philip Morris Incorporated4/1/2005
Opinion following rehearing
CERTIFIED FOR PUBLICATION
BACKGROUND
Richard Boeken filed this action on March 16, 2000, alleging various theories including negligence, strict product liability and fraud resulting in personal injuries caused by his cigarette addiction. The complaint alleges that Boeken began smoking in 1957, when he was a minor, that he smoked Marlboro and Marlboro Lights, both manufactured by Philip Morris USA, Inc., and that he was ultimately diagnosed with lung cancer in 1999.
The cause was tried to a jury over approximately nine weeks, beginning in March 2001. The jury found that Philip Morris products consumed by Boeken were defective either in design or by failure to warn prior to 1969, resulting in injuries to Boeken. The jury also found liability to Boeken based upon fraud by intentional misrepresentation, fraudulent concealment, false promise, and negligent misrepresentation, concluding that Boeken had justifiably relied upon fraudulent utterances and concealment by Philip Morris. Compensatory damages in the amount of $5,539,127 were awarded by the jury. It also assessed punitive damages in the sum of $3 billion dollars.
A Philip Morris motion for judgment notwithstanding the verdict was denied. Its motion for new trial was conditionally granted solely on the issue of punitive damages unless Boeken accepted a reduction in punitive damages to the sum of $100 million, in which case the motion was denied. Boeken consented to the reduction and an amended judgment was entered on September 5, 2001. Philip Morris and Boeken each filed timely notices of appeal.
We issued our first opinion on September 21, 2004, affirming the judgment but further reducing punitive damages to the amount of $50 million. Philip Morris and Boeken each filed petitions for rehearing, which we granted. We heard further argument on February 15, 2005. After reconsidering the issues raised by the parties, we again affirm the judgment and order reduction of punitive damages to $50 million, if Boeken accepts the remittitur. If he does not, we affirm the order of the trial court granting a new trial to Philip Morris on the issue of punitive damages.
EVIDENCE REGARDING SMOKING, ITS EFFECTS AND THE FALSE CONTROVERSY
Physicians had the ability in the mid-nineteenth century to diagnose lung cancer. It was a rare disease until some years after the first commercial pre-rolled cigarettes were introduced in the United States in 1913. In the 1930s, there was a sharp increase in the number of cases diagnosed, and by the end of World War II, its incidence had increased 20-fold.
Boeken's epidemiological expert, Dr. Richard Doll, joined Professor Bradford Hill at the London School of Hygiene in the late 1940s, to conduct the first studies in the United Kingdom to determine the cause of lung cancer, and why its incidence had increased so dramatically. Statistics established a causal connection between smoking and cancer, and Doll and Hill published their results in 1950 in the British Medical Journal.
A Dutch scientist had published a paper in 1948, having reached the same results, and in 1950, a smaller American study was published in the Journal of the American Medical Association by American scientists, Drs. Graham and Wynder, also reaching the same conclusion. There had been earlier studies in Germany, but they were not given much weight because the scientific methods used were not optimal.
The popular media and the UK Department of Health were not convinced by the Hill and Doll study, and so the two undertook a years-long study of 40,000 smoking and non-smoking English doctors who did no
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