TOBACCO company seeks retrial of $3 billion verdict, says smoker's criminal past relevant

Monday, July 30th 2001, 12:00 am

By: News On 6

LOS ANGELES (AP) _ Philip Morris Co. is arguing that the $3 billion judgment awarded to a longtime smoker with lung cancer should be reversed because the judge refused to allow evidence of his criminal history.

A Superior Court jury last month awarded $3 billion in punitive damages and $5.5 million in compensatory damages to 56-year-old Richard Boeken. The verdict was the largest ever in an individual lawsuit against a tobacco company.

Boeken, a former oil and securities dealer who smoked for 40 years, claimed he was the victim of an industry campaign that portrayed smoking as ``cool,'' but concealed its dangers.

During the trial, defense lawyers sought to tell the jury about Boeken's past run-ins with the law, including his involvement in the 1980s in a fraudulent oil and gas scheme. Boeken's lawyer, Michael Piuze, argued that his client's legal indiscretions had no bearing on the case and would prejudice the jury. Judge Charles W. McCoy agreed.

In its motion for a new trial, Philip Morris also takes aim at the size of the verdict, saying it shows jurors were motivated by ``passion and prejudice'' against the cigarette maker.

McCoy scheduled an Aug. 6 hearing on the motion and on an alternative request by the defense to reduce the damages to a maximum of $25 million.

Boeken had two felony convictions during the 1970s _ one involving stolen property and one for possession of a small amount of heroin. In 1993, he 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 in Wyoming in 1986-88.

Boeken, who was one of the salesmen, testified for the government in the successful prosecution of his former boss. 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.

Philip Morris' lawyers said evidence from the wire fraud case could have helped the jury in evaluating Boeken's credibility.