Beyond Belief


Richard Boeken, a 56-year-old securities broker from Topanga, California, is dying of lung cancer. But that's not why a Los Angeles jury decided Philip Morris should pay him $3 billion.

Boeken was awarded this prize in recognition of an amazing feat: He managed to live for nearly half a century without realizing that cigarette smoking is a dangerous habit. Or so he says.

According to CNN, Boeken testified that he "never heard or read about the health risks of smoking until congressional hearings were held in 1994." This claim does not simply strain credulity; it smashes credulity into a million tiny pieces.

The Associated Press noted that "Boeken took up cigarettes at age 13 in 1957–years before warnings were put on cigarette packs." Yet the hazards of smoking were a major topic of public conversation when Boeken was growing up.

Studies linking cigarettes to lung cancer received wide attention in the early '50s, leading to what history books describe as "the Cancer Scare." In 1959 Surgeon General Leroy Burney announced that "the weight of the evidence at present implicates smoking as the principal factor in the increased incidence of lung cancer."

Five years later, the surgeon general's Advisory Committee on Smoking and Health ratified the emerging scientific consensus that cigarette smoking causes lung cancer and other fatal diseases. That report was followed by two dozen others–all of which apparently escaped Boeken's attention.

Boeken also overlooked the warning labels that have appeared on every pack of cigarettes since 1966 and in every cigarette ad since 1972. He ignored or dismissed the public service announcements, newspaper and magazine articles, TV and radio reports, posters, pamphlets, buttons, billboards, and bumper stickers that highlighted the most widely publicized health hazard of the 20th century.

Even before all this, the 1965 Restatement (Second) of Torts, an authoritative explanation of product liability law, specifically cited tobacco as a product whose risks were commonly understood. Until 1997, California law likewise classified tobacco as a product that is "known to be unsafe by the ordinary consumer…with the ordinary knowledge common to the community."

Now we see the sort of idiocy that provision was holding back. In the tradition of last year's $145 billion award in a class action by Florida smokers, the jurors in this case pulled a number out of thin air to represent their anger at an industry notorious for playing fast and loose with the truth.

But in their haste to demonstrate their compassion and indignation, they forgot that they could not award damages unless they concluded that Boeken suffered an injury as a result of the industry's statements. And that was not possible unless they accepted a self-serving line at least as dubious as anything the tobacco companies have ever offered up.

"I've always believed very much in big business," Boeken told CBS News. "I just believed what they said. I believed when they said it was not addictive and…it's not proven that it's harmful to your health. Call me naive, but…I believed it."

But clearly he did not. According to the Tobacco Products Liability Project (an anti-smoking group), Boeken "quit smoking several times but resumed after those attempts at quitting failed." This is an odd way of putting it: The attempts failed because he resumed smoking, not the other way around. Fifty million former smokers in this country are proof that he could have succeeded if it had been important enough to him. In any case, why would he try to quit if he didn't think smoking was bad for his health?

It's not surprising that the jurors overlooked such telling details, given how confused they seemed to be. The $3 billion in punitive damages they awarded was more than 500 times the $5.5 million in compensatory damages–a ratio that suggests a howl of outrage rather than a reasoned judgment.

"It wasn't to punish," said one juror, apparently unclear on the concept of punitive damages. Another said, "This man's life is over–$3 billion doesn't even begin to cover it." But the $3 billion wasn't supposed to "cover" anything; that was what the compensatory damages were for.

The scandal in this case is not the old, familiar story of the tobacco industry's dishonesty. It's the utter failure of these jurors to set aside their emotions and reach a verdict based on a careful evaluation of the evidence.