Smoker accepts $28 million in LA tobacco suit but will appeal cut

Tuesday December 24, 2002

By JOHN ANTCZAK
Associated Press Writer

LOS ANGELES (AP) A woman with lung cancer will accept a reduced $28 million punitive damage judgment against cigarette maker Philip Morris but will appeal a judge's decision to slash a jury's original $28 billion award, her attorney said Tuesday.

Superior Court Judge Warren L. Ettinger failed to properly state his reason for settling on the $28 million figure, said Michael Piuze, attorney for 64-year-old Betty Bullock.

If Bullock did not accept the lower figure she would face a retrial of the punitive damages phase before Ettinger, Piuze said.

There is no conflict in accepting the judgment and appealing the reduction, he said.

``It's not an either-or kind of thing,'' he said, adding that his firm has had success in pursuing the strategy of accepting a reduced judgment and then appealing the reduction.

Piuze suggested that a reduction to $450 million a punitive-to-compensatory damages ratio of more than 500-to-1 would have been more appropriate.

Bullock, of Newport Beach, is in the late stages of cancer, according to Piuze.

``She didn't want to go quietly; she's done her part,'' he said, describing her condition as very poor.

``She is in serious, significant pain,'' he said.

The judge last week upheld the jury's decision that the tobacco company was at least partially responsible for Bullock's cancer, but found the $28 billion punitive award excessive. He termed $28 million ``a reasonable sum to be awarded against Philip Morris in these circumstances.''

The punitive damages in the case are in addition to $750,000 in economic damages and $100,000 for pain in suffering.

Philip Morris spokesman David Tovar said the company had no comment beyond a press release issued last week in which it said it will appeal the jury verdict. That statement also contended that the U.S. Supreme Court considers a 4-to-1 damages ratio to be near the constitutional limit.

Piuze said that under California law a judge must provide a statement of reasons when the court either increases or reduces a jury verdict.

``The rules are that the judge is supposed to be clear in his reasons why he chose one number over another,'' Piuze said. ``Judge Ettinger did not do that.''

It was not surprising that the judge found $28 billion to be too high but ``he gave no reasons for why $28 million was the proper amount.... He simply said it was using his independent judgment that he thought his number was OK,'' Piuze said.

In his ruling, Ettinger wrote that the court ``finds that the jury's award is legally excessive because it produced an excessive punitive to compensatory ratio. There is no bright-line rule in deciding when the punitive to compensatory damages relationship becomes excessive as a matter of law.''

The judge said that the U.S. Supreme Court ``has cautioned against any 'categorical approach' to ratios, but noted where 'the ratio is a breathtaking 500:1' ... the award must surely 'raise a suspicious eyebrow.'

``Here, the punitive damages awarded by this jury was 33,000 times the amount of the compensatory award. Hence, after balancing all relevant considerations, the court, exercising its independent judgment, determines from all the evidence that an award of $28 million is a reasonable sum to be awarded against Philip Morris in these circumstances.''

(Copyright 2002 by The Associated Press. All Rights Reserved.)