Are punitive damages enough?

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By MARTIN DYCKMAN

© St. Petersburg Times,
published August 26, 2001

TALLAHASSEE -- Though Richard Boeken has brain cancer and just lost $2.9-billion (yes, that's a b, not an m), some people might say he's an undeservedly lucky man.

They would be the defense lawyers for Philip Morris, which still has to pay Boeken $105.5-million unless some appeals court can be gulled into taking further pity on the poor little cigarette company.

Boeken, as you may have read, is a 56-year-old Californian who had smoked for 40 years before he was diagnosed in 1999 with lung cancer that has since spread to his brain. He was addicted to Marlboros when he was 16 and there were no cigarette warning labels. The tobacco industry's persistent lies assured that he would stay tamely on the hook until it was too late.

I can say these things as facts because a California jury found them to be facts and awarded Boeken $5.54-million to compensate him for his illness and $3-billion to punish Philip Morris.

Earlier this month, Superior Court Judge Charles W. McCoy Jr., who had conducted the trial, cut the punitive damages to a relatively paltry $100-million. Boeken accepted the decision but Philip Morris did not. It said it will pursue an "aggressive" appeal of the entire verdict.

At this point, some people might say that Philip Morris is the party with more good fortune than it deserves, its liability having been shrunk by more than 93 percent. However, to read McCoy's 27-page opinion is to appreciate that his reasons were sound. He wanted to make sure of a substantial verdict that would survive appeal and he feared that $3-billion would not.

To read what else McCoy said is to be reminded of the Nuremberg defendants who had the gall to deny that they should even be in the dock.

"Philip Morris's conduct," he wrote, "was in fact reprehensible in every sense of the word, both legal and moral . . .

"The record fully supports (a) finding," McCoy wrote, "that Philip Morris knew by the late 1950s and early 1960s that the nicotine in cigarettes is highly addictive, that substances in cigarette tar cause lung cancer, and that no substantial medical or scientific doubt existed on these crucial facts. Nevertheless, motivated primarily by a professed desire to generate wealth, Philip Morris, in concert with other major American tobacco companies, consistently endeavored through calculated misrepresentations to create doubts in the minds of smokers . . . especially addicted smokers such as Richard Boeken, that cigarettes are neither addictive nor disease producing."

The record "adequately demonstrates," McCoy explained, that Philip Morris publicly lied in saying no proof existed that smoking causes cancer, that medical authorities disagreed on the causes of lung cancer, and that smoking is not addictive.

Furthermore, he said, "substantial evidence" showed that Philip Morris knew that people who do not smoke in adolescence are unlikely ever to take up the habit and thus "focused its marketing on children, including the adolescent Richard Boeken in the 1950s, placing advertising where children were most likely to see it and crafting ads appealing to youthful passions for feelings of independence, identity and acceptance." The company monitored its Marlboro sales to ensure it maintained dominance among underage smokers to whom cigarettes could not be sold legally. To sum up, cigarette smoking was both addictive and lethal. Philip Morris not only knew so, but took great and costly pains to make sure the public didn't. Millions of lives were sacrificed to the greed of Philip Morris and its co-conspirators.

With all that, why is this only a civil case, where the punishment is limited to money -- money that, even at the original $3.05-billion, the defendant (i.e., its stockholders) could afford to pay? Why aren't the people who made those fatal decisions being rounded up for criminal trials? Surely some states must have flexible deadlines for manslaughter.

Last week, a Philadelphia grand jury charged two men with involuntary manslaughter and reckless endangerment in the collapse of a nightclub pier that killed three young women and injured dozens of people last year. A construction company that had just inspected the pier said the men had been warned of imminent collapse.

"All of this was predictable and preventable, as the owners knew from 1995 that the pier was shifting and moving," District Attorney Lynne Abraham said.

How does that differ from what the California jury found that Philip Morris did? If the lethal consequences were delayed rather than imminent, they were no less certain, and hugely more extensive.

"Punitive damages are really, in many respects, an alternative to criminal prosecution," says Paul Jess, general counsel of the Academy of Florida Trial Lawyers.

If legislatures like Florida's keep tightening the screws on punitive damages, public opinion eventually will leave no alternative but the sort of courtroom where fingers are stained from being printed rather than from signing checks.

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