California 10 years after smoker's suit, jury awards $12.8M to son Family had already won an earlier award from Phillip Morris in 2001 for $3 billion

By Sylvia Hsieh

The Daily Record Newswire

BOSTON, MA -- It started with a promise between a lawyer and his client.

When Michael Piuze represented Richard Boeken in his lawsuit against Philip Morris for causing his lung cancer, the smoker asked Piuze to make sure he took care of his family and "do his best to screw up Philip Morris."

Piuze ended up winning a $3 billion verdict for Boeken in 2001.

Last week, Piuze made good on his promise to his client, who died in 2002. After another jury trial against Philip Morris, Piuze won $12.8 million for Boeken's son, Dylan, for the wrongful death of his father.

The case was a long time coming. Years ago, Piuze and Philip Morris stipulated that the statute of limitations on any wrongful death suit by Boeken's family would be tolled until 60 days after all of the appeals on the smoker's suit were final. That didn't happen until 2006, when the U.S. Supreme Court denied certiorari.

"By the time the wrongful death suit was filed, Mr. Boeken had been dead ... more than four years," said Piuze of The Law Offices of Michael Piuze in Los Angeles.

It took another two and half years and a trip to the state supreme court to work out whether Boeken's wife could be included in the wrongful death suit. (The California Supreme Court ultimately ruled 4-3 that an earlier suit for loss of consortium filed in 2001 but dismissed voluntarily barred the wife from suing for wrongful death).

The son's verdict is subject to pre-judgment interest of about 50 percent of the verdict, said Piuze, because of a demand Piuze made five years ago for $4.9 million that Philip Morris rejected.

In a statement, Murray Garnick, Altria Client Services senior vice president and associate general counsel, said the company will appeal the verdict because "the trial court committed reversible error by prohibiting Philip Morris USA from defending itself and from contesting any liability issues."

Getting to a jury

The process of picking a jury took three and a half days -- as long as the trial itself.

Over Piuze's objection, the jury panel was told about the earlier verdict and that it had been paid.

"Probably 33 percent of the jury said it wasn't right to have a second lawsuit and excused themselves," said Piuze. "Greed was a major theme -- that these cases should end, that there shouldn't be two cases, that the family has already gotten money and shouldn't be here."

But many potential jurors during voir dire also said they had a bias against tobacco companies and several had a close relative who died from smoking related illnesses.

Neither side used all of its peremptory strikes to exclude unwanted jurors. According to Piuze, during the lengthy selection process he used four of his six peremptory strikes and the defense used five.

Although the defense took the position early on that the plaintiff had to try the case from scratch on liability, the judge rejected this argument and the nine men and three women who were seated reached a verdict on damages only.

Friends, family and neighbors

To show the type of father Richard Boeken was and the kind of relationship his son lost when his father died, Piuze relied on testimony from friends, family and neighbors of the Boekens. They portrayed a hard-working father whose family was the center of his world.

Dylan's mother, Judy, testified that she waited until she and Richard were married 10 years before having Dylan because she wanted to make sure the relationship would last.

One of Judy's sons from her first marriage, Damien, 37, testified about how Richard's "universe revolved around Dylan" and about his memory of how Richard, who never finished college, took college classes in creative writing and wrote a short story in which Dylan was the prince.

One witness, former neighbor Rick Jaffa, described Richard as the "pied piper," always strolling around the neighborhood with a flock of little kids and pets in tow.

The decade-long delay in bringing the case to trial presented a challenge for Piuze because the defense was able to argue that Dylan turned out fine despite losing his father.

"Instead of having a cuddly 10-year-old, now I had a 19-year-old client who had turned out well. The jury didn't have to speculate how he was going to do without his Dad; they could see he's a fine young man," said Piuze.

Dylan testified about his trip to Costa Rica to build homes for Habitat for Humanity and how a trip to Brazil solidified his interest in doing a double major in international studies and environmental protection, explaining the concept of "corridor creation" to the jury.

He also testified that he grew up thinking it was ok to leave work whenever you want, because his father was never too busy for him; that the last time he saw his father was in a hospital bed when his father told him he only had a week to live; and of the times he wished his father were there - "when I first started getting crushes on girls, the first time I needed to shave, when Mom was freaking out, math problems, stuff like that."

In his closing, Piuze asked the jury for $22.2 million. Philip Morris responded by asking the jury to award $500,000.

Another challenge for Piuze was figuring out how to quantify damages that were purely noneconomic.

"There was no loss of support, no loss of financial support. It was all loss of love and affection," he said.

In addition to showing a slideshow of family pictures of Dylan and his father, Piuze sang "What the world needs now is love, sweet love..." to the jury.

Piuze said he thought of singing the song because it resonated with jury instructions telling jurors to compensate for the loss of love, affection and companionship.

Published: Mon, Aug 22, 2011