JUDGE rules $3 billion punitive damages excessive in tobacco suit, offers plaintiff $100 million settlement

LOS ANGELES (AP) _ A judge ruled Thursday that a jury's $3 billion verdict against Philip Morris was excessive but the tobacco giant will get a retrial only if the cancer-stricken plaintiff won't

Friday, August 10th 2001, 12:00 am

By: News On 6

LOS ANGELES (AP) _ A judge ruled Thursday that a jury's $3 billion verdict against Philip Morris was excessive but the tobacco giant will get a retrial only if the cancer-stricken plaintiff won't accept a settlement of $100 million.

Superior Court Judge Charles W. McCoy ruled on a motion by the tobacco giant arguing that the punitive award was excessive and that the company will likely face similar cases and could not pay $3 billion to every plaintiff.

In June, a jury awarded Richard Boeken, 56, the multibillion-dollar punitive award in addition to $5.5 million in compensatory damages. It was the largest award in an individual lawsuit against a tobacco company.

Boeken, a lifelong smoker with lung cancer, claimed in his lawsuit that he was the victim of a tobacco industry campaign that portrayed smoking as ``cool'' but concealed its dangers.

Boeken would have to agree to the reduced $100 million settlement by Aug. 24, or Philip Morris will be granted a retrial ``solely on the issue of punitive damages,'' the judge wrote.

``The court finds that the evidence in the record .... is sufficient to support a punitive damages verdict,'' he wrote.

McCoy, the trial judge, denied a Philip Morris motion asking for a new trial on grounds that he erred in refusing to allow the company to present evidence of Boeken's past criminal convictions. The convictions, the company contended, challenged the credibility of his claim that he believed smoking was safe.

In the 1970s Boeken was convicted of two felonies involving stolen property and possession of a small amount of heroin.

In 1993, he pleaded guilty to a federal charge of aiding and abetting wire fraud involving a telephone boiler room operation that sold oil and gas properties from 1986 to 1988 in Wyoming. Boeken testified against former boss, pleaded guilty to the felony and was ordered to pay a fine and $50,000 restitution.

McCoy ruled during the trial that Boeken's criminal record was irrelevant to the tobacco lawsuit and could prejudice the jury.

Boeken said he took up cigarettes at age 13 and smoked at least two packs of Marlboros daily for more than 40 years. His attorney said Boeken was able to kick heroin and alcohol, but renewed his smoking habit after trying to quit several times.

Boeken was diagnosed in 1999 with lung cancer, which spread to his lymph nodes, back and brain. Boeken quit smoking for eight months after being diagnosed but later resumed smoking.