Tobacco Giant Cites Plaintiff’s Credibility
In its bid to reverse a $3-billion courtroom defeat in Los Angeles, tobacco giant Philip Morris Cos. is mining the colorful past of the plaintiff, Richard Boeken, and arguing that the judge erred in excluding evidence of his three criminal convictions.
Boeken, 56, is a Marlboro smoker and lung cancer victim who last month won the largest punitive damages award for an individual smoker. The Los Angeles County Superior Court jury ordered Philip Morris to pay $5.54 million in compensatory damages, and then tacked on $3 billion in exemplary damages to punish the company for fraud. The stunning result came in the first smoking and health case tried in Los Angeles County.
In a videotaped deposition played in court, Boeken gave important testimony that the defense called untruthful. In attacking Boeken’s credibility, defense lawyers sought to tell the jury about his past run-ins with the law, including Boeken’s involvement more than a decade ago in a fraudulent oil and gas scheme.
His lawyer, Michael Piuze, argued that Boeken’s legal indiscretions occurred years ago, had no bearing on the case and would prejudice the jury. The judge, Charles W. McCoy, agreed to bar the evidence.
Philip Morris is raising the issue again, as one of several grounds for ordering a new trial.
McCoy has scheduled an Aug. 6 hearing on the motion and on an alternative request by the defense for a reduction in the verdict to a maximum of $25 million. The judge is expected to rule from the bench or within a few days of the hearing.
Boeken declined to comment, referring questions to his lawyer.
Philip Morris says Boeken wasn’t telling the truth when he testified he was duped by the tobacco companies. The company contends it should have been allowed to tell jurors about Boeken’s legal problems to help them decide whether he was credible.
Citing his pro-business leanings, Boeken said he had long believed the industry’s claims that the risks of smoking were not proved. Although he acknowledged making several attempts to quit smoking in the 1960s, ‘70s and ‘80s, Boeken said it was not until the 1990s that he was clear about the dangers.
Such testimony can be crucial in a fraud case in which the plaintiff must prove not only that he was lied to, but also that he was influenced by the deception. Over several weeks of the trial, Piuze introduced dozens of incriminating internal documents to convince jurors that Philip Morris and its rivals had lied for decades about the dangers and addictive nature of smoking, without regard for the deaths of millions of customers.
Rather than defend Philip Morris’ honesty, defense lawyers contended that Boeken had not been hoodwinked or influenced to smoke by anything the industry said or did. In essence, the lawyers argued that Boeken was not telling the truth when he said he had taken the word of their client over that of health authorities.
But in challenging Boeken’s candor, they lacked some of the ammunition they had wanted to use, including two felony convictions during the 1970s--one involving stolen property and one for possession of a small amount of heroin.
In 1993, Boeken pleaded guilty to a federal charge of aiding and abetting wire fraud. The case involved a telephone boiler room operation that sold oil and gas properties from 1986 to 1988 in Wyoming. Prosecutors said the business took in about $2.1 million from more than 180 investors.
Boeken, who had been one of the salesmen, testified for the government in the successful prosecution of his former boss, Jason W. Smith. Boeken admitted that he had made misrepresentations in his sales pitch. As part of a cooperation agreement, he pleaded guilty to one felony charge, received a suspended prison sentence and was ordered to pay a fine and $50,000 in restitution.
Defense lawyers said the only evidence that Boeken had trusted the tobacco companies was his own uncorroborated testimony. Evidence from the wire fraud case could have helped the jury “in evaluating [Boeken’s] credibility,” the company said in its motion for a retrial.
But according to Piuze, the oil and gas case involved events “that occurred 13 or 14 years ago” and resulted in “about as vanilla a conviction as one could have.”
The judge “properly . . . determined that the value of this evidence was . . . outweighed by the prejudicial effect, which might have been great,” he told The Times.
According to legal experts, evidence of convictions that involve dishonesty or false statements is often admitted for the purpose of impeaching witnesses. Richard Uviller, a Columbia University law professor, said federal rules of evidence basically require that such information be admitted. Its exclusion in the Boeken case could be “a very strong point on appeal, because credibility appears to be critical in the case,” Uviller said.
But David Sklansky, a professor of law at UCLA, said California rules of evidence give judges wider discretion to balance the value of impeachment evidence against the risks of undue prejudice. “Under California law, that’s a judgment that has to be made on the facts of a particular case,” Sklansky said.
In its motion for a new trial, Philip Morris also takes aim at the enormous verdict, saying it shows jurors were motivated by “passion and prejudice” against the cigarette maker.
Citing rulings by the California and U.S. supreme courts, the company said punitive damages must bear some relationship to the amount of compensatory damages--a requirement it said was not met in the Boeken case, where the ratio was more than 500 to 1.
Piuze said in defense of the verdict that “Philip Morris got what it deserved.” Tobacco companies always “blame their problems on the jury,” when “the problems are their own making,” he said.
The Boeken case was the tobacco industry’s fourth major West Coast loss at the hands of an individual smoker.
Currently on appeal are a pair of San Francisco verdicts--$26.5 million against Philip Morris and $21.7 million against Philip Morris and R.J. Reynolds Tobacco Co. A $32-million judgment against Philip Morris in Portland, Ore., also is on appeal.
