Henley v. Philip Morris 11/7/01 CA1/4

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A086991

Case Date: 11/07/2001

Preview:Filed 11/7/01

CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

PATRICIA HENLEY, Plaintiff and Respondent, v. PHILIP MORRIS INC., Defendant and Appellant. (San Francisco County Super. Ct. No. 995172) A086991

Plaintiff brought this action for personal injuries allegedly sustained as a result of defendant's tortious misconduct in the manufacture and marketing of cigarettes. The jury returned a special verdict awarding plaintiff $1.5 million in compensatory damages and $50 million in punitive damages. The trial court denied defendant's motions for new trial and judgment notwithstanding the verdict, except that it ordered a new trial on punitive damages unless plaintiff consented to reduce the punitive award to $25 million. Plaintiff consented to the reduction, and defendant filed a timely appeal. Defendant raises a host of objections, many not preserved for appeal. Its primary contentions are that (1) all of plaintiff's claims are barred by the immunity conferred on tobacco manufacturers from 1988 to 1998 by former Civil Code section 1714.45 (section 1714.45);1 (2) the jury was misinstructed on the limitations imposed on

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified

for publication with the exception of parts II, III, IV, V, VI, VII, and VIII.
1 All future references to former section 1714.45 are to the version in effect from

January 1, 1988, to January 1, 1998. 1

plaintiff's claims by the Public Health Cigarette Smoking Act of 1969, title 15 United States Code section 1331 et seq. (the 1969 Act); (3) each of plaintiff's claims is deficient in various particulars; and (4) the punitive damage award cannot be sustained. We find no prejudicial error, and affirm the judgment.

INTRODUCTION AND BACKGROUND
We begin with a fundamental principle persistently overlooked by defendant: "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,

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