Smoker Agrees to $100-Million Award

A Los Angeles lung cancer victim has agreed to a record $100-million damage award against cigarette maker Philip Morris, rather than seeking an even larger possible verdict in a new trial.

Richard Boeken, 57, announced Tuesday his approval of the massive award, reduced from $3 billion by a Los Angeles judge earlier this month. His attorney, Michael Piuze, filed his client’s consent in Superior Court late Monday, four days before the court’s deadline for his decision.

Philip Morris, the country’s biggest cigarette maker, said it plans to appeal the award, and will file papers within a few weeks. The company will ask for a complete reversal and retrial on multiple grounds.

Meanwhile, the company will be required to post a $100-million bond with the court, according to the tobacco company’s attorneys.

Under a recent ruling by Superior Court Judge Charles W. McCoy Jr., Boeken had until Friday to agree in writing to the $100-million award or Philip Morris would have been granted a new trial on the punitive damages.

“Mr. Boeken has significant health concerns,” Piuze said Tuesday. “Someone who has a terminal illness and is trying to make the best of his life doesn’t need unnecessary stress. Having a trial against Philip Morris is a very stressful event.”

Piuze said he still believes that $100 million is not enough to punish the tobacco company for lying to the public about the dangers and addictiveness of smoking. “I have never come into contact with anything like the tobacco fraud that has been perpetrated for 50 years in this country,” he said.

Attorneys for the tobacco company have said Boeken should have been aware of the risks of smoking because of widespread anti-smoking publicity.

“Philip Morris is going to aggressively appeal to overturn an award that has gone from the ridiculous to the absurd,” said Steven B. Rissman, associate general counsel for Philip Morris.

Rissman said Tuesday that he anticipates that the appeal will be successful because of the overwhelming size of the award. “We are unaware of any appellate court decision that has upheld a punitive damage award of greater than $25 million, which we contend is still too much.”

The $100 million is the largest judgment against a tobacco company in a lawsuit by an individual smoker.

A Los Angeles jury awarded $3 billion in punitive damages to the Topanga resident in June after finding Philip Morris guilty of fraud, negligence, misrepresentation and selling a defective product. The jury also granted $5.54 million in compensatory damages for the Marlboro smoker.

On Aug. 9, Judge McCoy reduced the award to $100 million and said he would grant a retrial only if Boeken declined the award. McCoy ruled that the jury’s award was legally excessive and was disproportionate to the compensatory damages traditionally given for medical relief and lost earnings. The ratio of the jury verdict was 540 to 1, and McCoy cut it to 18 to 1. Philip Morris argued that the ratio should be no more than 3 to 1.

In his ruling, McCoy called the tobacco company’s efforts to hide scientific information about the health risks of smoking “reprehensible in every sense of the word.” He wrote that Philip Morris did not accept responsibility for the “devastating and widespread” consequences of its conduct on people like Boeken.

Boeken started smoking as a teenager more than 40 years ago before warnings on cigarettes were common practice. The self-employed dealer in oil and gas securities was diagnosed in 1999 with lung cancer that has since spread to his brain.

Piuze said he has anticipated an appeal.

“I would be shocked beyond words if Philip Morris sent a truck over here with $100 million,” he said. Piuze added that his client will cross appeal the case to seek reinstatement of the $3-billion punitive damages awarded by the jury.

The decision became public on the same day that Philip Morris’ attorneys argued in a California appellate court that a $26.5-million award to another lung cancer victim in San Francisco was excessive.

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Times staff writer Steve Berry contributed to this report.