Henley v. Philip Morris 9/25/03 CA1/4

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State: California

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

Docket No: A086991B

Case Date: 09/25/2003

Preview:Filed 9/25/03

(Opn. following transfer by the Supreme Court)

CERTIFIED FOR 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. A086991 (San Francisco County Super. Ct. No. 995172)

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. In our original opinion we affirmed the judgment in its entirety. (Henley v. Philip Morris (2001) 93 Cal.App.4th 824, review granted Jan. 29, 2002, S102941 (Henley I).) The Supreme Court granted review and ultimately retransferred the matter to us with directions to "vacate [our] decision and to reconsider the cause in light of Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828 [(Myers)]), and Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856 [(Naegele)])." We concluded that many of defendant's objections, including its claims of error under those cases, had not been preserved for appeal. (See pt. I., below.) Defendant again petitioned the California Supreme Court, which has again remanded the matter for reconsideration, now in light of State Farm Mut. Auto. Ins. Co. 1

v. Campbell (2003) 538 U.S. __, 123 S.Ct. 1513, 155 L.Ed.2d 585 (Campbell). In that case the United States Supreme Court elaborated considerably upon the federal constitutional principles constraining civil punitive damage awards. We conclude that in light of that decision, the $25 million in punitive damages awarded in this matter cannot be sustained on the present record, but that an award of $9 million would satisfy the constitutional standards enunciated in that case. Accordingly we will reverse for a new trial on punitive damages unless plaintiff agrees to a reduction of the judgment to reflect such smaller award. In all other respects we reiterate our previous decision.

INTRODUCTION AND BACKGROUND
We begin with a fundamental principle 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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