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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,
A086991
v.
PHILIP MORRIS INC.,
(San Francisco County
Super. Ct. No. 995172)
Defendant and Appellant.
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, § 349, p. 394.) Thus in ascertaining the underlying
facts for purposes of appellate analysis, the reviewing court "must consider the evidence
in the light most favorable to the prevailing party, giving him the benefit of every
reasonable inference, and resolving conflicts in support of the judgment." (Id. § 359,
p. 408, italics in original.)
Viewed most favorably to the judgment, the evidence shows that plaintiff, who
was born in 1946, began smoking cigarettes in 1961 or 1962, at the age of 15, when she
"lit up" with some school friends outside a dance. At that time she felt smoking was
"cool" and "grown up," provided the pleasure of the forbidden, made her look older, and
served as a "rite of passage." Then and for some years thereafter, nobody told her that
cigarettes could cause her serious disease. There were no warnings on cigarette packages
or in advertisements. Plaintiff was not taught in school about the dangers of tobacco. As
a result she believed that cigarettes, which contained "[t]obacco, pure and simple," were
"not a harmful product." Nor did she know that cigarettes or nicotine could be addicting.
Nothing in the advertising she saw suggested that if she started smoking she might be
unable to stop.
2
The jury could also find that starting no later than December 1953, defendant and
other cigarette manufacturers agreed to act together to counter mounting scientific
evidence about the health risks of cigarette smoking. By the time plaintiff began
smoking, defendant knew that tobacco contained numerous carcinogenic substances as
well as flavoring additives that also produced carcinogenic compounds upon combustion.
Tobacco manufacturers were also aware of epidemiological studies that showed a strong
correlation between smoking and the incidence of lung cancer. Yet they launched a
concerted public relations campaign to deny any link between smoking and serious
illness. A major part of this strategy was the creation of a "research institute" that would,
as the public was told, attempt to find the truth about smoking and health--though in fact
it was permitted to conduct very little research that might confirm a link, serving mainly,
as the jury was entitled to find, to gather ammunition against tobacco's detractors. Other
strategies included manipulating the mass media to suppress or make light of adverse
news developments, such as new studies or reports.
The jury could also find that defendant engaged in saturation advertising, much of
it consciously targeting the teenage audience from which new ("replacement") smokers
had to come. Defendant knew that persons who did not begin smoking during their teen
years were unlikely to do so. In particular, defendant sold the brand of cigarette plaintiff
preferred, Marlboro, using symbols of the independence, autonomy, and mature strength
for which teenagers were understood to yearn. The jury could find that these targeted
teenage consumers possessed less critical judgment, and were more receptive to
marketing manipulation generally, than might be the case with adults. The jury could
find that teenagers who went past the experimentation phase became addicted to tobacco,
as a result of which they found it extremely difficult to stop smoking and often suffered
impaired judgment with respect to the consequences of continuing to do so.2 The jury

2 We use the term "addicted" as shorthand without meaning to declare as a judicial fact
that tobacco is addictive in any settled medical sense. That question is not before us.
The jury here presumptively found that tobacco was addictive in a sense supported by the
evidence and supportive of the judgment.
3
could find that the strategy of marketing to teenagers and causing them to become
addicted to its products was central to the tremendous success and profitability of the
Marlboro brand in particular, helping defendant to become one of the largest and most
successful corporations in the world.
In 1966, as evidence of health risks mounted, Congress required that cigarette
packages bear the relatively mild warning that smoking "may be hazardous." In the 1969
Act, Congress required a somewhat stronger warning and required that it appear in
advertising as well as on packages. At the same time, Congress explicitly preempted any
state law imposing a "requirement or prohibition with respect to advertising or
promotion" of cigarettes--language that has since been construed to preempt many but
not all common-law tort claims. Although the warnings have since been further
strengthened, this partial federal immunity remains in place, and is one of defendant's
major defenses here. (See section II, below.)
In 1988 the tobacco industry acquired a safe harbor under California law when,
riding the coattails of a legislative compromise, tobacco was listed among "common
consumer products" in former section 1714.45, a statute construed the following year to
create an almost complete "immunity" from tort liability. The Legislature repealed that
protection effective January 1, 1998, but defendant contends that it nonetheless applies to
defeat most or all of plaintiff's claims here. (See section I, below.)
The jury was entitled to find that well before these legislative defenses became
applicable, plaintiff had become an addicted smoker with sharply impaired judgment and
will where cigarettes were concerned. Plaintiff testified that on the subject of cigarette
smoking and health, "my brain wasn't going to register anything that anybody said."
When she saw the first package warnings, she minimized the perceived "degree[] of
danger," thinking to herself that it was also "dangerous to walk across the street." She
testified that while she heard the United States Surgeon General was saying things about
cigarettes, she also knew "that the tobacco companies were saying different." As a
4
result, the package warning "didn't faze me one way or the other. I wasn't going to give
the cigarettes up at that point."
Plaintiff's first regular brand of cigarettes was Marlboro, and it remained her
favorite brand throughout almost all of her 35-year smoking history. From age fifteen
until she was about 43 years old (around 1989), she apparently smoked one-and-a-half to
two packs a day of "Marlboro Red," a brand rated to deliver relatively high amounts of
tar and nicotine. At that age, however, she switched to Marlboro Lights, a lower-tar
brand, on what the jury was entitled to view as the direct advice of a Philip Morris agent.
Plaintiff testified that around that time she began to hear that "low-tar cigarettes were
better. You wouldn't get as much tar and nicotine and, you know, their advertising on
the low-tar cigarettes was really out there. [¶] I'm thinking, `Well, okay. Maybe there's
something to this.' So when I was approximately 43, I decided that, `Well, I'll check into
this and maybe I'll change from the Reds to the Lights.' [¶] So I did indeed call the
Marlboro, Philip Morris company and expressed, you know, my concerns as to, `Is it
really true? Is there less tar in this or less nicotine?' [¶] And I was assured at the time
that if I was concerned that, yes, I could switch to the Lights . . . ." She did so and, in a
few weeks, had more or less doubled her intake, to three-and-a-half packs a day.
By mid-October 1997 plaintiff "was feeling really bad" and "down for the count
with what I thought was heavy-duty flu." She was diagnosed in February 1998 with
small-cell carcinoma of the lung. The jury was more than entitled to find that this
affliction was directly caused by cigarette smoking.
5
ANALYSIS
I.
IMMUNITY UNDER FORMER SECTION 1714.453
A.
Nature of Error; Standard of Review.
Defendant contends that the trial court erred by "refus[ing] to apply" the immunity
granted to tobacco manufacturers prior to 1998 by former section 1714.45. This is not an
adequate specification of error. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 340,
p. 382 [court reviews trial court's actions, not reasoning]; Pittman v. Boiven (1967) 249
Cal.App.2d 207, 215 ["It is the duty of counsel to refer the reviewing court to the portion
of the record to which he objects and to show that the appellant was prejudiced
thereby."]; Brown v. World Church (1969) 272 Cal.App.2d 684, 691 ["it is not the burden
of this court to act as counsel for either party and we will not assume the task of making a
search for error"]; Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d
218, 229 [refusing to consider claims of attorney misconduct unaccompanied by record
references].) However, defendant elsewhere notes that the trial court denied a motion for
nonsuit based on former section 1714.45. This is a specific and reviewable ruling. Other
matters to which defendant alludes in this regard are not, for various reasons, cognizable

3 The same or related issues are currently pending before the Supreme Court in at least
five cases: Myers v. Phillip Morris Companies, Inc. (9th Cir. 2001) 239 F.3d 1029,
certification accepted March 21, 2001 (S095213); Souders v. Philip Morris Inc. (2001) *
Cal.App.4th * [104 Cal.Rptr.2d 821], review granted, May 16, 2001 (S096570);
Naegele v. R. J. Reynolds (2000) * Cal.App.4th * [96 Cal.Rptr.2d 666], review granted,
Oct. 18, 2000 (S090420); Bowyer v. Philip Morris, Inc. (Mar. 28, 2001) B145673
[nonpub. opn.], review granted, June 13, 2001 (S097441); Reynolds v. Philip Morris, Inc.
(July 10, 2001) B141850, [nonpub. opn.], review granted, October 10, 2001 (S099989).
In addition, as this opinion was being prepared for filing, the Fourth District published In
re Tobacco Cases II (Oct. 25, 2001) __ Cal.App.4th __ [2001 Cal.App. LEXIS 841, 2001
C.D.O.S. 9195]. The court there concluded that nothing in the statute "unmistakably
express[ed] any legislative intent that the amended statute be applied retroactively." (Id.
at p. __ [2001 Cal.App. LEXIS 841, *47-48; 2001 C.D.O.S. at p. 9201].) Our study of
the statutory language has led us to the contrary conclusion.
6
grounds for reversal.4
Defendant was entitled to nonsuit if "as a matter of law, the evidence presented by
plaintiff [was] insufficient to permit a jury to find in [her] favor." ( Nally v. Grace
Community Church (1988) 47 Cal.3d 278, 291.) Since this is an issue of law, we review
it de novo, employing the same standard as the trial court. (Saunders v. Taylor (1996) 42
Cal.App.4th 1538, 1541-1542.) For present purposes it is not seriously disputed that the
evidence was sufficient to support findings that plaintiff started smoking cigarettes in the
early 1960s and continued to do so until late 1997, as a result of which she contracted
lung cancer. Although defendant makes a half-hearted attempt to cast the point in doubt,
we infer in support of the judgment that plaintiff did not and could not reasonably
discover her cancer before early 1998, when she was diagnosed with that illness and told
that it resulted from cigarette smoking. The question thus presented is whether former
section 1714.45 precluded the imposition of liability on defendant for plaintiff's injuries
as a matter of law. We hold that it did not.
B.
Former Section 1714.45.
Defendant relies on former section 1714.45 as in effect from January 1, 1988, to
January 1, 1998. At that time the statute provided that a manufacturer or seller could not
be liable in a "product liability action" for injuries caused by a product if the product was

4 Defendant's claim of erroneous admission of evidence is not cognizable in the absence
of an objection below on the ground now asserted. (Evid. Code, § 353, subd (a).)
Defendant's statement that the evidence was admitted "despite objection" is somewhat
disingenuous: the cited objections had nothing to do with the issue now under
discussion. Defendant's complaint that the trial court should have instructed the jury to
disregard evidence of conduct supposedly immunized by the statute founders on the
acknowledged fact that no such instruction was proffered or requested. Nor does the
cited authority (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306,
333-334) support defendant's claim that the court was required to give such an
instruction on its own motion. Finally, in ruling on post-trial motions the trial court was
entitled to consider objectionable evidence to which no objection was asserted.
(3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 393, p. 484; Cal. Law
Rev. Com. com., West's Ann. Evid. Code, § 140.)
7
"inherently unsafe," was "known to be unsafe by the ordinary consumer who consumes
the product with the ordinary knowledge common to the community," and was "a
common consumer product intended for personal consumption, such as . . . tobacco . . . ."
(Former section 1714.45, subd. (a); Stats. 1987, ch. 1498, § 3, pp. 5778-5779.)
"[P]roduct liability action" was defined as "any action for injury or death caused by a
product, except . . . an action based on a manufacturing defect or breach of an express
warranty." ( Id., subd. (b).)
In 1989 Division Two of this court described former section 1714.45 as a "poorly
drafted statute" that failed to convey a single " `plain meaning' " but, "[o]n the contrary,"
was "on its face amenable to two diametrically opposed interpretations, each of which
conflicts in some significant way with the words the Legislature used." ( American
Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480, 485 (American Tobacco).)
The court nonetheless concluded that the statute created an "immunity" for manufacturers
of the enumerated products that was both "automatic" (id. at p. 486) and "nearly
complete" (id. at p. 487). The breadth of this reading may have been cast in some
question by Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, which held that in an
action for damages resulting from lung disease, an asbestos manufacturer could not
reduce its own "comparative responsibility" under Proposition 51 (Civ. Code, § 1431 et
seq.) by seeking to attribute a share of responsibility to an absent tobacco company. The
court confirmed that former section 1714.45 "immunized" tobacco suppliers. ( Id. at
pp. 1000, 1001, 1003, fn. 8.) At the same time, the court seemed to reserve judgment on
the scope and extent of the immunity provided. ( Id. at pp. 999, 1003, fn. 8.)
The year after Richards was decided the Legislature itself undertook to amend
former section 1714.45 as it affected tobacco products. From these efforts emerged two
statutes. The first added a subdivision (d) to the former statute declaring that it posed no
impediment to actions by public entities to recoup the cost of benefits provided to persons
injured by tobacco products. (Stats. 1997, ch. 25, § 2, p. 230.) We are more concerned
with the second amendment, Senate Bill No. 67, ultimately chaptered as Statutes 1997,
Chapter 570 (SB 67). Because it was not an urgency measure, it took effect on January 1,
8
1998. (See Gov. Code, § 9600, subd. (a).) It made the following changes to former
section 1714.45: (1) deleted tobacco from the list of products in subdivision (a);
(2) inserted a new subdivision (b), stating that the statute did not "exempt the
manufacture or sale of tobacco products by tobacco manufacturers and their successors in
interest from product liability actions"; (3) modified and renumbered (as subdivision (e))
subdivision (d), which had just been added as noted above; (4) inserted a new subdivision
(f) declaring a legislative intention to abolish any "statutory bar" to claims by persons
"who have suffered or incurred injuries" and to ensure that "claims which were or are
brought" would be "determined on their merits"; and (5) inserted a new subdivision (g)
declaring section 1714.45 inapplicable to "tobacco industry research organization[s]."
(§ 1714.45.) Accompanying the amendment was a further uncodified declaration of
legislative intent. (Stats. 1997, ch. 570, § 2.)
SB 67 thus effected a repeal of section 1714.45 insofar as it had conferred an
immunity on tobacco manufacturers, their successors, and tobacco industry research
organizations. The term "repeal" appears in the one-sentence "summary" or "digest" in
nearly all of the committee and floor reports. (E.g., Sen. Com. on Judiciary, Rep. on Sen.
Bill No. 67 (1997-1998 Reg. Sess.) as amended Feb. 14, 1997 ["This bill would repeal
the current immunity conferred upon manufacturers and sellers of tobacco products, as
specified in Civil Code Section 1714.45, for products liability."].)
C.
Effect of Statute.
1.
Express Terms.
The question presented, then, is whether the 1998 repeal of the immunity formerly
granted to tobacco manufacturers by former section 1714.45 applies to permit plaintiff's
suit. Innumerable authorities acknowledge a general " `presumption' " against giving
retroactive effect to statutory changes (e.g., Buttram v. Owens-Corning Fiberglas Corp.
(1997) 16 Cal.4th 520, 536, fn. 6, quoting Landgraf v. USI Film Products (1994) 511
U.S. 244, 265), but beyond that the jurisprudence of statutory retroactivity is a dense
conceptual jungle. We have elected to more or less follow the analytical approach taken
9
in Landgraf, supra, 511 U.S. at p. 280. In that approach, the first task is to determine
whether the enacting body "has expressly prescribed the statute's proper reach." (Ibid.)
If it has, there is no occasion to resort to "judicial default rules." (Ibid.; see Western
Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 ["when the Legislature
clearly intends a statute to operate retrospectively, we are obliged to carry out that intent
unless due process considerations prevent us"].) Only if the statute lacks an express
directive must the court attempt to determine "whether the new statute would have
retroactive effect" for purposes of the judicial presumption. (Landgraf, supra, 511 U.S.
at p. 280) In short, we need not decide whether application of the change to a particular
state of facts would be "retroactive" if the statute plainly calls for such application.
We have concluded that the statute here expressly calls for application to the
present case. Subdivision (f) of section 1714.45 (subdivision (f)) states, "It is the
intention of the Legislature in enacting the amendments to subdivisions (a) and (b) of this
section adopted at the 1997-98 Regular Session to declare that there exists no statutory
bar to tobacco-related personal injury, wrongful death, or other tort claims against
tobacco manufacturers and their successors in interest by California smokers or others
who have suffered or incurred injuries, damages, or costs arising from the promotion,
marketing, sale, or consumption of tobacco products. It is also the intention of the
Legislature to clarify that those claims that were or are brought shall be determined on
their merits, without the imposition of any claim of statutory bar or categorical defense."
(Italics added.)
Three portions of this declaration expressly prescribe a retroactive effect. The first
extends the abolition of the prior immunity to persons who "have suffered or incurred"
damages from tobacco products. A statute " `speaks from the date it takes effect.' "
(Hersh v. State Bar (1972) 7 Cal.3d 241, 245, quoting People v. Righthouse (1937) 10
Cal.2d 86; see Righthouse, supra, at p. 88 ["every statute speaks as though the
Legislature was in session on the day when the act takes effect and passed it on that
day"].) The statute thus must be understood as a statement by the Legislature, speaking
on January 1, 1998, that persons who "ha[d] suffered" damages from tobacco products, as
10
of that date, were not to be impeded in the assertion of claims by the immunity formerly
afforded to tobacco manufacturers. As a matter of common sense, the words chosen
could hardly mean anything else, and as a matter of grammar, they do not. The quoted
phrase uses what is usually referred to as the "present perfect" tense. It refers to an event
beginning in the past and either completed in the past or continuing into the present. The
event here described--the suffering of an injury--necessarily contemplates antecedent
injury-producing conduct by the defendant. The quoted phrase thus constitutes an
explicit extension of the repeal to at least some injuries and conduct preceding its
enactment.
The statute next declares an intent that "those claims that were or are brought shall
be determined on their merits, without the imposition of any claim of statutory bar or
categorical defense." This wording, using the simple past tense, is unusual, but that does
not deprive it of effect. The statute speaks as of its effective date, and a reference on
January 1, 1998, to claims that "were brought" can only mean claims brought prior to
that date. We conceive no interpretation of this language, and defendant suggests none,
which gives it any other meaning. It thus reiterates and reinforces the legislative
intention to extend the repeal of immunity to at least some past claims--not only claims
based on past events and conduct, but also claims "brought" before the effective date.
Further textual evidence of retroactive intent appears in the statement that the
Legislature intends to "clarify" that the described claims will be decided on their merits
without regard to the former statutory bar. Here "clarify" is a term of art presumably
intended to invoke the rule that "a statute that merely clarifies, rather than changes,
existing law does not operate retrospectively even if applied to transactions predating its
enactment." (Western Security Bank v. Superior Court , supra, 15 Cal.4th 232 at p. 243,
italics omitted.) Of course a flat repeal of a prior statute is not in fact a mere
"clarification"; by definition it changes the law. The Legislature's characterization of
such a change as a "clarification" is not binding on us. (Id. at p. 244.) Nonetheless it is
textual evidence that "may still effectively reflect the Legislature's purpose to achieve a
retrospective change." (Ibid.)
11
Relying on Colfield v. American Tobacco Company (E.D.Cal. Aug. 6, 1999, Civ-
S-98-1695 DFL DAD)--an unpublished memorandum of opinion from a federal trial
court--defendant makes a series of arguments against reading subdivision (f) as
expressly disclosing retroactive intent.5 Defendant notes that the statute lacks a
retroactivity clause as explicit as those found in other statutes. The short answer to this is
that California law does not require the most explicit possible clause. The question is
whether the Legislature has disclosed by " `express language or clear and unavoidable
implication' " an intent to apply the statute to prior events. ( Evangelatos v. Superior
Court (1988) 44 Cal.3d 1188, 1208.) We have answered that question in the affirmative.
That the Legislature could have made its intentions clearer does not mean it failed to
make them clear enough.
Quoting the unpublished Colfield decision, defendant asserts that subdivision (f)
" `seems to take a later perspective in time, after January 1, 1998, when it could
accurately be said that "there exists no statutory bar . . . to tobacco-related tort
claims." ' " (Ellipsis defendant's.) To the same effect is the suggestion that
subdivision (f) might be " `read from the perspective of future courts, to whom the
Legislature is providing interpretive advice.' " These statements are devoid of logical
force because they are couched in terms of mere apparency or possibility, as if it were
unnecessary to say what the statute actually means. Insofar as they assert anything, it is

5 Defendant has burdened an already mammoth record with vast quantities of
unpublished authority from other jurisdictions. Our own unpublished opinions are not
authority, and parties are forbidden to cite them as such. (Cal. Rules of Court, rule
977(a).) Nor does a written opinion by a California trial court possess precedential value.
(Santa Ana Hospital Medical Center v. Belshé (1997) 56 Cal.App.4th 819, 831; see
Neary v. Regents of University of California (1992) 3 Cal.4th 273, 282, quoting Fenske v.
Board of Administration (1980) 103 Cal.App.3d 590, 596 [" `[T]rial courts make no
binding precedents.' "].) The federal district courts are trial courts, and their opinions are
subject to this same principle. ( Bowen v. Workers' Comp. Appeals Bd. (1999) 73
Cal.App.4th 15, 20, fn. 8.) Indeed, on questions of state law no federal court opinion is
binding on us--even that of the United States Supreme Court. ( East Quincy Services
Dist. v. General Accident Ins. Co. (2001) 88 Cal.App.4th 239, 246.)
12
that the verbs in subdivision (f) speak from some future time. We discern no basis for
this hypothesis, which flatly contradicts the principle that a statute speaks as of the time
of its enactment. (Hersh v. State Bar, supra, 7 Cal.3d at p. 245.) The quoted rumination
to the contrary seems to reflect nothing more than an unwillingness to give the
Legislature's words their apparent meaning.
We are likewise unpersuaded by the statement that " `[a]n unexplained shift in
verb tense is too slender a reed on which to base such a significant departure from normal
legislative practice.' " In addition to the reasons already stated, to disregard statutory
language as insignificant violates the canon that "whenever possible, significance must be
given to every word in pursuing the legislative purpose, and the court should avoid a
construction that makes some words surplusage." (Agnew v. State Bd. of Equalization
(1999) 21 Cal.4th 310, 330.) We are not free to adopt an argument that simply dismisses
statutory language as "unexplained" or "too slender."
Somewhat more plausibly, defendant contends that an intent to apply the 1998
legislative changes to past conduct, injuries, or claims, is incompatible with that portion
of subdivision (e) of section 1714.45 (subdivision (e)) stating that, in any recoupment
action brought by a public entity, "the fact that the injured individual's claim against the
defendant may be barred by a prior version of this section shall not be a defense."
(Italics added.) According to defendant, the italicized language is an explicit
acknowledgement that as of the effective date of the statute, and thereafter, prior versions
of the statute could continue to bar claims. Defendant also suggests that the quoted
language would be superfluous if the 1998 amendments effected a complete retroactive
repeal of the prior immunity.
Defendant thus obliquely invokes two rules of construction. The first, which we
have already noted, counsels against a construction that will render parts of a statute
superfluous. (Agnew v. State Bd. of Equalization, supra, 21 Cal.4th at p. 330.)
Defendant seems to imply that if the Legislature intended to retroactively lift the former
immunity as it affected individual claims, it would not bother to prescribe a rule for cases
in which individual claims might be subject to the immunity. Second, defendant may be
13
understood to suggest that, for similar reasons, subdivision (e) actually conflicts with
subdivision (f) insofar as the latter is construed to make the repeal retroactive; implicit in
this suggestion is the further proposition that the conflict should be resolved in favor of
subdivision (e).
The indirectness of this argument may stem from the difficulty of asserting it more
cogently without exposing its fatal weakness. In a sentence, the cited language from
subdivision (e) does no more than acknowledge the possibility that some claims "may" be
"barred by a prior version of this section." There is no logical conflict between such a
statement and an expression of legislative intent that claims not be barred. Even if the
two provisions appeared to be in tension with each other, such tension would not provide
a sufficient basis to simply ignore one of them. "It is fundamental that legislation should
be construed so as to harmonize its various elements without doing violence to its
language or spirit." (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788;
People v. Garcia (1999) 21 Cal.4th 1, 6.) Thus if a statute contains two potentially
conflicting terms, a court will attempt to avoid an interpretation that requires it to
disregard one of them "or to rewrite some of their provisions." (People v. Garcia, supra,
21 Cal.4th at p. 6.) Such a neutralizing construction, or "reformation," may be
undertaken if "compelled by necessity and supported by firm evidence of the drafters'
true intent." ( Ibid.) It should be avoided, however, "when the statute is reasonably
susceptible to an interpretation that harmonizes all its parts without disregarding or
altering any of them." (Ibid.)
Here the cited provision of subdivision (e) is readily harmonized with the
retroactive repeal of the statutory immunity, at least as applicable to this case. It can be
read as a reflection of legislative uncertainty about the future judicial treatment of the
repeal. In Landgraf, supra, 511 U.S. at p. 261, the court rejected an argument that
language specifying the prospective effect of some parts of a statute would be
superfluous if other parts were not applied retroactively. The court said that the
specification of prospectivity was explained by, among other things, "Congressional
doubt concerning judicial retroactivity doctrine." (Ibid.) Here, the Legislature was not
14
required to gamble that courts would retroactively apply the repeal of tobacco immunity
to any and all individual claims. The Legislature was entitled to anticipate that courts
might hold some claims barred, and to act on that possibility by declaring that it had no
effect on recoupment claims by public entities.
Defendant makes no attempt to harmonize or reconcile subdivisions (e) and (f) but
would simply rewrite the latter to remove any reference to past claims. But defendant
makes no attempt to show, and we see no basis to conclude, that such a treatment is
"compelled by necessity" or "supported by firm evidence of the drafters' true intent."
(People v. Garcia, supra, 21 Cal.4th at p. 6.) As we have explai ned, the supposedly
conflicting provisions can be reconciled by positing legislative uncertainty over the
extent to which courts would carry out the expressed intent that the statute apply to
events and claims predating its effective date. The provisions of subdivision (e) therefore
afford no occasion to disregard those expressions of intent.
We conclude that the 1998 amendments to section 1714.45 manifest on their face
a legislative intent that the repeal of the immunity originally conferred on tobacco
companies be effective with respect to claims involving events antecedent to the effective
date of the amendments. This is not to say, and we do not decide, whether the repeal
extends to all claims asserting antecedent events. It is enough for our purposes that the
Legislature expressed an intent to extend the repeal to some class of antecedent claims.
As will appear, if the statute applied to any such claims, it necessarily applies to
plaintiff's claims. (See section E, below.)
2.
Extrinsic Evidence of Legislative Intent.
Defendant contends that notwithstanding the text of subdivision (f), the legislative
history of the 1998 repeal establishes that it was not intended to apply retroactively. This
argument depends not on the history of the statute as it ultimately became effective but
on the failure, by veto, of another measure introduced in that same session to abolish
tobacco manufacturers' immunity under section 1714.45. The gist of defendant's
argument appears to be that the other measure, Senate Bill No. 340 (1997-1998 Reg.
15
Sess.) (SB 340), explicitly provided for retroactive effect; thus, defendant implies, the
failure of that measure is a repudiation of such effect.
We find this contention unsound in a number of respects. First, although a court
seeking to ascertain the proper application of a statute "may properly rely upon extrinsic
aids, it should first look to the words of the statute to determine the Legislature's intent."
(O'Kane v. Irvine (1996) 47 Cal.App.4th 207, 211; see Kraus v. Trinity Management
Services, Inc. (2000) 23 Cal.4th 116, 129 ["If the language of a statute is clear and
unambiguous, judicial construction is not necessary and a court should not indulge in
it."]; J.A. Jones Construction Co. v. Superior Court (1994) 27 Cal.App.4th 1568, 1578
[noting dangers inherent in "reading the tea leaves of legislative history"].) Here we see
no need to resort to legislative history, or other extrinsic evidence, given the explicit
references to past events and claims in subdivision (f).
Second, evidence of unenacted legislation has been repeatedly rejected as a basis
for establishing the intent of enacted legislation. (E.g., People v. Escobar (1992) 3
Cal.4th 740, 751 [" `weak reed upon which to lean' "]; Snyder v. Michael's Stores, Inc.
(1997) 16 Cal.4th 991, 1003 [same]; id. at p. 1003, fn. 4 [vetoed statute overturning prior
decision "provide[d] no guidance"]; California Labor Federation v. Industrial Welfare
Com. (1998) 63 Cal.App.4th 982, 994 [disregarding vetoed bill overturning regulatory
action]; Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 181, fn. 10
["legislative history tea leaves"].)
Third, such light as SB 340 might shed on the legislative intent of SB 67 is
unfavorable to defendant's position. SB 340 would have added a new section 1714.55 to
the Civil Code dealing exclusively with the application of section 1714.45 to claims
asserting specified theories of liability against tobacco manufacturers, their successors,
and tobacco industry research organizations. (SB 340 as enrolled Sept. 3, 1997;
http://www.leginfo.ca.gov/pub/97-98/bill/sen/sb_0301-0350/sb_340_bill_19970903_
enrolled.html.) The new statute would have: (1) declared section 1714.45 inapplicable to
any action against one of the specified defendants by a person who did not voluntarily
consume tobacco; (2) declared section 1714.45 inapplicable to any action against one of
16
the named defendants sounding in fraud, misrepresentation, or conspiracy; (3) declared
the legislative "intent" that section 1714.45 "never applied" to such actions; and (4)
declared that American Tobacco, supra, 208 Cal.App.3d 480, "misinterpreted the intent
of the Legislature" to a stated extent such that the new statute would not change, but
would be declaratory of, existing law. (SB 340, § 1.) The bill also contained a further
uncodified expression of legislative intent of little apparent relevance. (Id., § 2.)
The governor's veto message, to which defendant does not allude, states that his
refusal to sign the bill rests not on any desire to limit the abolition of the former
immunity but on the belief that the bill was redundant of SB 67 and thus threatened to
generate needless confusion. The governor wrote that he was refusing to sign the bill
because it "creat[ed] exceptions to an immunity which no longer exists." (Governor's
Veto Message to Sen. on Sen. Bill No. 340 (Oct. 3, 1997) (1997-1998 Reg. Sess.).) It
was in that light that he believed its enactment "would . . . serve no purpose," and that it
would, if it became law, "create confusion over the meaning of the statute as it is now
amended." ( Ibid.) Thus the Governor's opinion that the proposed statute was redundant
of SB 67, far from supporting defendant's argument, suggests that the Governor expected
SB 67 to have a similar effect--i.e., to apply to all claims within its scope regardless of
when they arose or when the events on which they rested occurred.
Finally, while defendant fails conspicuously to discuss the legislative evolution of
SB 67 itself, and while the legislative record lacks a "smoking gun" on the subject of
retroactivity, we find substantial support in it for the premise that subdivision (f) was
intended, and indeed its primary purpose was, to extend the abolition of the former
immunity to at least some past events and claims. As originally proposed the bill
contained no such provision. The first committee analysis on the bill contained the
following comments under the heading "Prospective repeal only": "Some concern has
been expressed that SB 67 would apply only to causes of action arising on or after
January 1, 1998, assuming it is enacted this year. In the absence of specific language in
the legislation specifying retroactive application, a measure will operate prospectively
only upon its enactment." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 67 (1997-
17
1998 Reg. Sess.) as amended Feb. 14, 1997, for hearing date of Apr. 8, 1997.) One week
after this acknowledgment of "concern" about a prospective-only application of the
amendments as then drawn, the bill was amended by the insertion of what is now
subdivision (f). (SB 67, supra, as amended Apr. 16, 1997.)
The record also contains evidence that (1) the broad "immunity" found in
American Tobacco came as a surprise; and (2) the original statute had been enacted under
a mistaken understanding induced at least in part by the tobacco industry's own
deceptions. In a Senate floor analysis, a supporter of SB 67 is quoted as follows: " `At
the time [of enacting former section 1714.45], it was not anticipated that the California
courts would interpret [it] so broadly. Over the last decade, we have also learned much
regarding the addictive nature of tobacco and the industry's intentional efforts to mislead
the public on the health effects of tobacco. This, coupled with the courts' broad
interpretation of the California statute, has precipitated the need to change that statute and
remove tobacco's liability protections.' " (Sen. Rules Com., Floor Analysis, Sen. Bill
No. 67 (1997-1998 Reg. Sess.) as amended Aug. 11, 1997.)
We conclude that the legislative history does nothing to detract from, and if
anything enhances, our conclusion that the express references to past events and claims in
subdivision (f) must be applied to extend abolition of the statutory immunity to at least
some events and claims antedating January 1, 1998.
D.
Constitutionality.
Defendant asserts that application of the 1998 amendments so as to deny it the
immunity provided by the previous version of the statute will violate the constitutional
guarantee of due process of law and the prohibition against ex post facto laws. This, at
any rate, is the assertion in defendant's argumentative heading. However, the ensuing
text argues, not that such an application of the amendments is constitutionally prohibited,
but that the statute must be construed not to permit such an application, under the
" `cardinal principle' that statutes must be construed, whenever possible, to avoid raising
constitutional issues." (Quoting United States v. Security Industrial Bank (1982) 459
18
U.S. 70, 78.)
First, defendant suggests that the Legislature cannot retroactively abolish a
preexisting defense without violating the due process rights of a party who would
otherwise have been entitled to raise that defense. The primary cited authority for this
supposed rule is Morris v. Pacific Electric Ry. Co. (1935) 2 Cal.2d 764, 768-769.
Although the analysis in that case is somewhat oblique, the real holding appears to be that
a legislative change in the principles governing the doctrine of "negligence per se" was a
substantive change in law which could not be accomplished without a clear indication of
legislative intent. Defendant quotes, in heavily edited form, the following comment:
"[T]he legislature may not, under pretense of regulating procedure or rules of evidence,
deprive a party of a substantive right, such as a good cause of action or an absolute or a
substantial defense which existed theretofore." (Id. at p. 768, italics added.) More
critical to our analysis is a statement defendant ignores altogether: "The legislature did
not assume to make the amendment retrospective and under the circumstances the court
is not warranted in doing so." (Id. at p. 769, italics added.)
Defendant cites In re Marriage of Garcia (1998) 67 Cal.App.4th 693, 698-699,
where we cited Morris in holding that a statute silent as to its own application to past
events could not, by the expedient of calling it "procedural," deprive a party of
substantive defenses to which he had long since become entitled by passage of time. We
did not purport to hold that retroactive application, if called for by the Legislature, would
have been unconstitutional. Similarly, Zellers v. State of California (1955) 134
Cal.App.2d 270, was concerned with the effects of an enactment that did not purport by
its terms to apply to pre-enactment matters.
Defendant also quotes the statement in Beck Development Co. v. Southern Pacific
Transportation Co. (1996) 44 Cal.App.4th 1160, 1207, that "[i]n general, legislation that
makes certain conduct unlawful cannot be applied to conduct that was lawful and
completed before its enactment." Application of this proposition is conditioned on
(1) categorization of the case in which it is asserted as falling within the "general" rule,
and (2) characterization of the conduct at issue as having been "completed" when the
19
statute took effect. Moreover, this generalization is expressly conceded by the court to
rest largely or entirely not on any constitutional prohibition against a contrary result but
on the "constructional policy against the retroactive application of legislation." (Ibid.)
As we have seen, that policy--which is a presumption or preference and not, as
defendant suggests, a prohibition--is overcome here by the express language of the
statute. The court's general reference to "constitutional prohibitions" is no more
effective than defendant's to establish that this case falls within such a prohibition.
In sum, none of the cases cited by defendant or known to us actually rests on the
proposition that the Legislature lacks the power to retroactively abolish a defense it has
previously created. Indeed we see little basis for such an argument. Even if the defense
had become a vested right--a dubious proposition--such rights " ` "may be impaired
`with due process of law' under many circumstances." ' " (In re Marriage of Bouquet
(1976) 16 Cal.3d 583, 592.) The dispositive question appears to be " ` "whether such a
change reasonably could be believed to be sufficiently necessary to the public welfare as
to justify the impairment." ' " ( Ibid.) The Legislature might well conclude that it was,
particularly in light of evidence, alluded to in the legislative record (see above), of
concerted efforts by the tobacco industry to deceive smokers, the public, and legislators
themselves concerning the dangerous effects of their products.
We also note that any claim of unfairness in the abolition of a statutory defense
must take account of Government Code section 9606, which provides, "Any statute may
be repealed at any time, except when vested rights would be impaired. Persons acting
under any statute act in contemplation of this power of repeal." (Italics added.) On its
face this provision sharply limits any claim by a defendant that its wrongful conduct is
shielded by having been undertaken in reliance on the assurance provided by a statutory
defense. Defendant contends in essence that it was entitled to market dangerous products
and misrepresent their dangerousness because it had been promised that it could do so
without fear of liability. The promise, however, was subordinated to an express
legislative reservation of a power of revocation. Upon learning of the true nature of
defendant's conduct, the Legislature exercised that power. We see no reason to suppose
20
that defendant was any more entitled to rely on the statute as protection against inchoate
claims, i.e., claims not yet presented and adjudicated, than a plaintiff would be to rely
upon the continued future existence of a statutory cause of action not yet reduced to
judgment.
We conclude that defendant has demonstrated no sufficient basis on which to hold
that application of the 1998 amendments here would offend the due process clause.
Defendant also makes passing suggestions that application of the 1998 repeal to
this case would constitute an ex post facto law in violation of the federal and state
constitutions. This argument can have no bearing on an award of compensatory
damages; the ex post facto clauses " `apply only to penal statutes.' [Citation.]"
(Greenbaum v. State Bar (1987) 43 Cal.3d 543, 550.) Defendant may be understood to
suggest that the award of punitive damages was "penal" for purposes of the constitutional
prohibition, and thus that the 1998 repeal cannot authorize recovery of those damages
based on conduct prior to its effective date.
Assuming a punitive damages award might be deemed "penal" for purposes of the
prohibition against ex post facto laws, the prohibition only applies if the challenged law
"makes that criminal or penal which was not so at the time the action was
performed . . . ." (Thompson v. Missouri (1898) 171 U.S. 380, 383; United Business
Com. v. City of San Diego (1979) 91 Cal.App.3d 156, 172-173, fn. 7.) (Italics added.)
The statutory immunity asserted by defendant only existed from January 1, 1988, to
January 1, 1998. Accepting for the moment the premise that penalizing conduct during
that period would offend the ex post facto clause, the same cannot be said for conduct
before 1988. That conduct, if subject to penalty when it occurred, would remain subject
to penalty today--at least, the ex post facto clause is no impediment. The intervening
period of immunity might be relevant to some issues, but would have no relevance to the
ex post facto analysis.
It is at least arguable that defendant's most culpable conduct as to this plaintiff
took place during the 1960s, while plaintiff was being induced as a teenager to become
thoroughly addicted to cigarettes. The jury may well have imposed punitive damages
21
entirely on the basis of that conduct, or on other conduct prior to 1988. We are directed
to no evidence that defendant requested an instruction informing the jury that it could not
award punitive damages based on conduct during the time the immunity was in effect
(the immunity window). Indeed we are directed to no evidence that defendant ever
sought to separate the ex post facto issue, as it arose under section 1714.45, from the
claim of a total defense based on that statute. Since the ex post facto argument could at
most warrant relief affecting punitive damages, and in that regard only to limit the
evidence that the jury could consider, it was not adequately presented by a motion for
nonsuit, and is not properly before us.
E.
Application to Present Case.
We have concluded that the 1998 amendments to section 1714.45, and particularly
the addition of subdivision (f) to that section, represent a clear expression of legislative
intent that such immunity as existed under the original statute be repealed or abolished
with respect to at least some past events and claims against tobacco companies. We need
not decide whether some claims remain barred, or where the line lies between those that
may be barred and those that may proceed. Subdivision (f) explicitly contemplates that
some cases may proceed even though they were "brought" before the amendments took
effect. This case was "brought" after the amendments took effect, and so far as has been
shown on appeal, after the "accrual" of plaintiff's cause of action for limitations
purposes. If subdivision (f) does not require the adjudication of this case "on [its] merits,
without the imposition of" the former "statutory bar or categorical defense," then we fail
to see how that subdivision can serve any purpose whatsoever.6
We conclude that section 1714.45 was not a defense to this action.

6 This analysis makes it unnecessary to address plaintiff's argument that because her
claim "accrued" after the effective date of the 1998 amendments, application of those
amendments here would not be retroactive.
22
II.
FEDERAL PREEMPTION.
Defendant contends that many or all of the legal grounds on which the jury was
permitted to impose liability were preempted by the 1969 Act. The only specific errors
suggested are that (1) the court erroneously permitted the jury to consider evidence made
inadmissible by the 1969 Act, and (2) the trial court gave an instruction overstating the
extent to which the jury could find liability consistent with federal law.7
The suggestion of evidentiary error is too vague for appellate consideration. No
particular ground of exclusion is offered. We may infer that defendant relies on the
premise that preemption rendered certain evidence irrelevant, but we will not address
errors at the very nature of which we are forced to guess. Furthermore defendant makes
no attempt to establish that any pertinent objection has been preserved for appeal by
timely interjection in the trial court. (See Evid. Code, § 353.) We therefore pass this
claim without further consideration.
Defendant waived much of its instructional objection by express consent and
invitation. Defendant stipulated in open court that all instructions actually read to the
jury were given at the "request and the invitation" of both parties except insofar as
objections were embodied or expressed (1) in certain dispositive motions denied just
before the stipulation was entered; (2) by express statement immediately after entry of
the stipulation; or (3) immediately after the reading of instructions, insofar as any party
might assert that the instructions as read did not conform to those called for by the

7 As italicized in defendant's brief, the challenged instruction provided in part:
"[B]ecause of federal law, and except only as stated below, you may not base any
findings of liability on a determination that (a) defendant Philip Morris, through its
advertising or promotional practices, neutralized, minimized or undermined the effect of
the federally-mandated warnings after July 1, 1969, or (b) defendant Philip Morris, after
July 1, 1969, failed to disclose, or concealed or suppressed, information about the health
risks of smoking. [¶] The federal law does not limit the potential liability of Philip
Morris against claims that it made misrepresentations about the health risks of smoking
23
stipulation.
Defendant does not claim to have asserted federal preemption as a ground for any
of the motions to which the stipulation referred, and appears not to have done so. This
stands to reason since preemption by the 1969 Act furnishes no defense to claims arising
before its effective date. As for express objections voiced after the stipulation was
entered, defendant lodged exactly one: namely, that the instructions were erroneous
insofar as they allowed a verdict for plaintiff based on a theory of conspiracy to conceal
after July 1, 1969. Counsel stated that defendant's "only objection" was that the
instructions failed "to incorporate the July 1, 1969 limitation as it relates to the
conspiracy to conceal claim." (Italics added.)
No party will be heard to complain of an error it invited. (Jentick v. Pacific Gas &
Elec. Co. (1941) 18 Cal.2d 117, 121 ["a party cannot successfully take advantage of error
committed by the court at his request."]; see Lynch v. Birdwell (1955) 44 Cal.2d 839,
847.) Defendant is not relieved of this rule by Code of Civil Procedure section 647,
which states that jury instructions are among judicial actions "deemed excepted to"
without an express exception. (Code Civ. Proc., § 647.) The statute only means that "an
appellant is deemed to have excepted to the instructions he has not requested or agreed
to." (Pugh v. See's Candies, Inc. (1988) 203 Cal.App.3d 743, 759, italics added; see
Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653-1654,
1655; id. at p. 1653, quoting Mesecher v. County of San Diego (1992) 9 Cal.App.4th
1677, 1686 ["The invited error doctrine applies `with particular force in the area of jury
instructions.' "].)
By the express terms of the stipulation, defendant "request[ed] and invit[ed]" the
instruction complained of except insofar as it allowed recovery for conspiracy to conceal
after 1969. Defendant cannot enlarge this objection on appeal so as to argue that the jury
was improperly permitted to consider other theories in connection with post-1969 events

or that it conspired with other cigarette companies to conceal, suppress, or misrepresent
information regarding the health effects of smoking."
24
and conduct.
With the issue thus narrowed, we find it unnecessary to decide whether the
instruction accurately states the scope of federal preemption because it is impossible to
say that the verdict was probably affected by any cognizable error. "To prevail on a
claim of instructional error, the appellant must show a reasonable probability of a more
favorable result in the absence of the error." (Daum v. SpineCare Medical Group, Inc.
(1997) 52 Cal.App.4th 1285, 1313.) In considering whether it " ` "seems probable" that
the error "prejudicially affected the verdict," ' " a reviewing court "should consider not
only the nature of the error . . ., but the likelihood of actual prejudice as reflected in the
individual trial record, taking into account `(1) the state of the evidence, (2) the effect of
other instructions, (3) the effect of counsel's arguments, and (4) any indications by the
jury itself that it was misled.' " (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th
953, 983, quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581.) The
burden is on the complaining party to "demonstrate [that] a miscarriage of justice arose
from the erroneous instruction." ( Rutherford, supra, 16 Cal.4th at p. 983.)
Defendant's showing here falls far short of demonstrating that an instruction
barring liability for conspiracy to conceal after 1969 would probably have affected the
outcome. The jury found for plaintiff on all eight legal theories embodied in the
instructions, i.e., (1) supplying a product that failed to perform as safely as an ordinary
consumer would expect it to perform; (2) supplying a product before 1969 while failing
to give adequate warning of its dangerousness; (3) simple negligence; (4) breach of
express warranty; (5) intentional misrepresentation; (6) fraudulent concealment;
(7) fraudulent promise; and (8) negligent misrepresentation. The jury also found that
defendant committed conspiracy to defraud by concealment, suppression, or
misrepresentation of the health effects of cigarette smoking. Only one of these findings
(conspiracy to commit fraudulent concealment) is affected by the alleged error before us,
and it is only partially affected; a holding in defendant's favor would only mean the jury
could not find for plaintiff on that theory on the basis of post-1969 conduct. On the face
of the special verdict alone, it appears unlikely that such a limitation would have had any
25
effect on the ultimate finding of liability.
Defendant argues that the court's error with respect to preemption was prejudicial
in that it caused the court to "improperly allow[] into evidence a mass of documents and
testimony" concerning post-1969 advertising, failures to warn, and concealment of health
risks. This is not a showing of "prejudice," but a back-door attempt to charge evidentiary
error without laying the necessary foundation. (See Evid. Code, § 353.) Defendant
makes no coherent showing that this evidence was not admissible for a proper purpose
unrelated to concealment, e.g., to establish scienter in support of a claim for fraud. Fraud
is outside the preemptive scope of the 1969 Act. ( Cipollone v. Liggett Group, Inc. (1992)
505 U.S. 504, 528 (Cipollone).)
Defendant's next claim of prejudice is that in argument to the jury, plaintiff's
counsel relied heavily on the supposedly preempted theory embodied in the challenged
instruction. The passages cited by defendant, however, concern not conspiracy to
conceal after 1969, but inadequate package warnings before 1969. In her first allusion to
package warnings counsel said, "[W]hen Patricia started smoking at age 15 in 1961,
there was nothing on the package. There was no warning." (Italics added.) Counsel
went on to argue that given the health risks posed by cigarettes, "you'd expect to see a
skull and crossbones on it (indicating). You'd expect to see the word `Poison' on it."
Counsel next alluded to package warnings in connection with the first warning mandated
in 1965, which counsel denounced as inadequate to deter plaintiff, by this time "a regular
smoker [who] needed her cigarettes." Federal law posed no impediment to this
argument, and defendant does not suggest otherwise. (Cipollone, supra, 505 U.S at
pp. 519-520.)
The specific passage cited by defendant echoed the earliest one in its reference to a
skull and crossbones, and also followed, if at slightly greater distance, explicit references
to plaintiff's original acquisition of the smoking habit. Thus counsel conceded plaintiff's
inability to specify a date and advertisement that caused her to begin smoking Marlboros.
Instead, counsel said, plaintiff had started smoking Marlboros because of a " `cute guy at
school' " who " `looked like the Marlboro Man.' " Counsel then discussed defendant's
26
use of the "Marlboro Man" as a symbol of independence particularly appealing to
teenagers. To support this argument counsel read aloud from, apparently, a 1976 Philip
Morris memorandum quoting a 1969 source which itself was apparently derived from an
earlier source. Counsel argued that defendant exploited the symbolism of the Marlboro
Man in order to induce teenagers to start smoking its products: "You don't become the
No. 1 cigarette brand because you don't appeal to teenagers. That's the only way that
you get starters. Starters equal children. And children do not make informed choices.
[¶] And had that [apparently indicating image of skull and crossbones] appeared on the
pack, there's a greatly [sic] likelihood that somebody would see that, instead of a red and
white color package that looks so nice . . . . That's the kind of warning that would be
paid attention to . . . ."
Given this context we find it disingenuous of defendant, at best, to characterize
these remarks as having been made "without any distinction as to time." Indeed
plaintiff's counsel told the jury, if somewhat elliptically, that it could not predicate
liability on a failure to warn after 1969. She went on to argue that the jury should find for
plaintiff on a consumer expectations theory because the years preceding 1969 were "the
time frame when [plaintiff] was . . . becoming hooked." Nothing in counsel's argument
provides any basis to think that the jury relied on a theory of post-1969 conspiracy to
conceal, or that had it expressly forbidden to do so it would have found for defendant on
any other theory--let alone all of them.
III.
STRICT PRODUCTS LIABILITY.
A.
Post-1969 Defect Under "Consumer Expectations Theory."
Defendant contends that, for a variety of reasons, plaintiff was not entitled to
judgment on her theory of strict tort liability for manufacture of a defective product. The
jury was instructed by stipulation that this claim was established if, as pertinent to this
appeal, plaintiff was injured as the result of a design defect in a product manufactured by
defendant. A product is defective, the jury was told, if (1) it "fails to perform as safely as
27
an ordinary consumer would expect when used in an intended or reasonably foreseeable
manner"; or (2) its use in a foreseeable manner involves a substantial danger not readily
recognized by the ordinary user, the danger was known or knowable at the time of
manufacture in light of generally recognized and prevailing scientific and medical
knowledge, and the manufacturer "failed to give an adequate warning of that danger
before July 1, 1969."
Defendant asserts that the trial court erred by permitting plaintiff's "consumer
expectations" claim to go to the jury without restricting it to the time before the effective
date of the 1969 Act. We have serious reservations about the soundness of this argument,
which sounds in federal preemption, but we need not decide the issue because the point is
barred by the parties' stipulation. (See section II, above.) Defendant argues that it
preserved the point by objecting to the portion of the instructions permitting the jury to
find conspiracy to conceal after 1969. We fail to see how. Under the stipulated portions
of the instructions the jury was free to return a verdict for plaintiff if it found that the
cigarettes smoked by her were at any time more dangerous than the ordinary consumer of
cigarettes would expect. The jury obviously made such a finding, which was supported
by overwhelming evidence.
B.
Failure to Heed Warnings.
Defendant asserts two related arguments to the effect that the presence of package
warnings barred recovery on a products liability theory as a matter of law.
First, defendant contends that a product labeled with mandatory warnings
"cannot" be found to "fail California's consumer expectations test." Insofar as this
argument hints at federal preemption it is not cognizable on appeal for the reasons
already stated. We address it solely as a proposition of California tort law. We find no
persuasive basis for it in the cases cited by defendant.
In Papike v. Tambrands Inc. (9th Cir. 1997) 107 F.3d 737, cert. denied, the court
affirmed a summary judgment for a tampon manufacturer on a claim that its product
caused the plaintiff to suffer toxic shock syndrome. Defendant cites the case for its
28
disposition of the plaintiff's consumer expectations claim in two terse sentences:
"Tambrands' warnings met the federal requirements and Papike's design defect claim
therefore fails the `consumer expectation' test. To rule otherwise would allow the
anomalous circumstance that a consumer is entitled to expect a product to perform more
safely than its government-mandated warnings indicate." (Id. at p. 743.) We are
unpersuaded that these comments conform to California law, at least if taken outside the
facts of that case. The warnings there might well have justified summary judgment for
the defendant, because they explicitly notified the user of the very danger at issue and
there is no suggestion of any countervailing evidence raising a genuine material issue of
fact as to the likely expectations of consumers. The court's unilluminated statement that
liability would be "anomalous" does not furnish a sufficient ground to take the matter
from the jury.
In Macias v. State of California (1995) 10 Cal.4th 844, the court held that
insecticide makers had no duty to issue warnings to the public in connection with an
emergency insect eradication program, where the state had already issued warnings
required by applicable statutes. ( Id. at p. 857.) The holding did not rest on some
presumption that the mandatory warnings were adequate as a matter of law, but on the
injudiciousness of requiring private parties to "interfere with" the state's emergency
efforts. (Ibid.)
In Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1094, the court
affirmed a summary judgment on the ground that the warning given there was sufficient
as a matter of law, as shown by the evidence. Nothing in that decision suggests that a
government-mandated warning categorically bars liability for a product otherwise shown
to be more dangerous than ordinary consumers expect. Other cases cited by defendant do
not purport to apply California law, and are not persuasive on the point at issue. (See
Haddix v. Playtex Family Products Corp. (7th Cir. 1998) 138 F.3d 681, 686 [tampons
came within Illinois rule for "simple products," and were not unreasonably dangerous
given specificity of warnings and plaintiff's admission that she read them]; Lescs v. Dow
Chemical Co. (W.D. Va. 1997) 976 F. Supp. 393, 399 [federal labeling act preempted
29
claim under Virginia law that insecticide was defective under consumer expectations
theory].)
Defendant's second argument concerning package warnings is that plaintiff's
supposed failure to heed warnings precludes, as a matter of law, a finding that any defect
in the product was a proximate cause of her injuries. This argument seems to proceed as
follows: (1) Where a product bears government-mandated warnings, they must be
presumed sufficient to apprise the user of the steps necessary to avoid injury; (2) where a
plaintiff fails to take such steps, his or her conduct is a superseding cause of any injury
she suffers; (3) had plaintiff quit smoking in compliance with package warnings, "she
almost certainly would not have developed lung cancer from smoking"; therefore (4) any
defect in defendant's product was not a proximate cause of plaintiff's injuries.
In support of the first point defendant cites four cases for a proposition they do not
remotely support, i.e., that "[u]nder California law, a plaintiff's failure to heed a product
warning negates any potential liability because, under such circumstances, the plaintiff's
own conduct, not a product defect, is the proximate cause of the plaintiff's injury." In
Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 110-111, the court reversed a
summary judgment for a defendant based on its claim that its product warnings were
adequate as a matter of law; the court assumed the proposition, conceded by the plaintiff,
that "where adequate warnings have been passed along from manufacturer or seller to the
ultimate consumer, there can be no liability." (Italics in original.). It cited Persons v.
Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 174, 178, where a jury verdict
for a ski binding maker was affirmed over the plaintiff's argument that the defendant
breached a duty to warn as a matter of law; the court held that the defendant's duty was
discharged by giving appropriate warnings to the ski shop that installed the bindings.
Similarly, in Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 989, 991, the court affirmed
a jury verdict for a drug manufacturer despite a failure to warn the plaintiff, where
adequate warnings were given to her physician.
Defendant apparently cites Oakes v. E. I. Du Pont de Nemours & Co, Inc. (1969)
272 Cal.App.2d 645, 649, for its general discussion of failure to warn as a species of
30
product defect. Aside from the inaptness of this discussion to the question of proximate
cause, portions of the decision contradict defendant's position. Most notably, the court
said that a product bearing an adequate warning, " `which is safe for use if it is followed,
is not in defective condition, nor is it unreasonably dangerous.' " ( Ibid., quoting Rest.2d
Torts, § 402A, com. j, italics added.) Defendant points to only one warning here that
ever gave any instruction to be "followed"--a statement that "Quitting Smoking Now
Greatly Reduces Serious Risks to Your Health." This warning was not adopted until
October 12, 1984, and was not required to appear until one year after enactment. (Pub.L.
No. 98-474 (Oct. 12, 1984) 98 Stat. 2202.) Plaintiff had then been smoking for some 23
years. We are directed to no evidence concerning the medical probability that quitting in
1985 would have affected the course of her illness. In any event Oakes does not support
the point for which it is cited.
Likewise Luque v. McLean (1972) 8 Cal.3d 136, 145, is concerned not with
proximate cause but with the kind of contributory negligence that will constitute a
defense to a product liability claim. " `For such a defense to arise,' " the court wrote,
" `the user or consumer must become aware of the defect and danger and still proceed
unreasonably to make use of the product.' " (Ibid., italics added; see id. at p. 145, fn. 9
[discussing Rest.2d Torts, § 402A, com. n, and other authorities on " `assumption of
risk' " in strict liability cases].) Defendant apparently waived any such defenses; the
stipulated instructions included none on these subjects. The Luque decision therefore has
no bearing on this appeal.
C.
Reliance on Expert Testimony.
Defendant also contends that the jury's finding of liability on a consumer
expectation theory rests impermissibly on expert testimony. This argument depends upon
a misconstruction of Soule v. General Motors Corp, supra, 8 Cal.4th 548 at p. 567,
concerning the general impropriety of relying on expert witnesses to establish the
expectations of the ordinary consumer. The actual holding is that " where the minimum
safety of a product is within the common knowledge of lay jurors, expert witnesses may
31
not be used to demonstrate what an ordinary consumer would or should expect." (Ibid.,
italics added.) In a footnote, the court confirmed, in the context of "specialized"
products, the implied corollary of the above rule: "[I]f the expectations of the product's
limited group of ordinary consumers are beyond the lay experience common to all jurors,
expert testimony on the limited subject of what the product's actual consumers do expect
may be proper." (Id. at pp. 568-569, fn. 4.) This rationale would seem to authorize the
admission of expert testimony at least for the purpose of establishing what smokers
expected at various times in the past, most particularly during the critical period when
plaintiff began to smoke and became "hooked." 8
Defendant extracts from Soule the proposition that "[b]y using experts, plaintiff
disqualified herself as a matter of law from relying on a `consumer expectations'
theory . . . ." In other words, by merely proffering expert testimony, plaintiff waived her
consumer expectations theory. The proposition is absurd if only because expert
witnesses may well be called on issues having nothing to do with consumer expectations.
(Soule, supra, 8 Cal.4th at p. 567.) Furthermore, the argument again rests on supposed
evidentiary and instructional errors that are not separately stated or coherently
demonstrated on appeal and are not shown to have been raised below. If defendant's
argument was sound, the remedy was to exclude the expert testimony or withhold the
consumer expectations theory from the jury--not to suffer admission of the testimony,
stipulate to the jury's consideration of the theory, and then seek reversal on appeal.
D.
Inherently Dangerous Product: Comment i and BAJI No. 9.00.6.
Defendant next asserts that plaintiff's product liability claims were barred by the

8 We do not consider two related questions, not presented in Soule, concerning the
applicability of its holding where (1) the ordinary user of a product may be predisposed
by psychological and pharmacological factors associated with its use to perceive its risks
differently than do other members of the public, and (2) the "minimum safety" of the
product is a matter of public controversy as to which consumers have been exposed to a
variety of conflicting opinions, assertions, and sophisticated propaganda techniques
intended to neutralize any perception of danger.
32
doctrine stated in comment i to section 402A of the Restatement Second of Torts
(comment i) and BAJI No. 9.00.6. Two distinct errors seem to be asserted. One is that
the claims were barred as a matter of law and thus, by implication, should not have been
submitted to the jury at all. The other is that the court committed "instructional error" by
refusing a supposed request to give BAJI No. 9.00.6.
The claim of instructional error has been waived. Defendant asserts in its reply
brief that it requested the instruction in connection with all of plaintiff's product liability
theories. No such request is cited. Instead, at the cited point in the transcript, both
counsel agreed with the court's statement "that the defense did request that the court give
9.006 [sic] on the risk/benefit prong of Barker versus Lull." This was an allusion to a
specific theory of product liability asserted by plaintiff. (See Barker v. Lull Engineering
Co. (1978) 20 Cal.3d 413.) In response to that limitation, plaintiff expressly abandoned
the Barker theory. As a result, the court did not give BAJI No. 9.00.6. If defendant was
in any way surprised by this, it was required under the parties' stipulation to object no
later than immediately after the instructions were read. It did not do so.
In the face of this record defendant states, somewhat astonishingly, that "[f]or
reasons not explained on the record, the trial court was willing to give BAJI 9.00.6 had
plaintiff proceeded to trial on a risks/benefits design defect theory, but refused to give the
instruction on the consumer expectations and failure to warn claims . . . ." The court did
not "refuse" to do anything; it omitted an instruction which it apparently believed
defendant had only requested conditionally. Its reasons were anything but unexplained:
the condition under which defendant requested the instruction had ceased to exist. If the
court was mistaken, it was up to defendant to say so, not let the matter pass and then offer
it on appeal as grounds for a retrial.
This leaves defendant's argument that the doctrine embodied in comment i and
BAJI No. 9.00.6 entitled defendant to judgment as a matter of law. Defendant cites six
motions or memoranda raising related points; none raises this specific argument.
Nonetheless, this is the kind of argument which, if limited to its potential as a complete
bar to liability, we may consider on appeal notwithstanding the failure to raise it below.
33
The problem with defendant's many other arguments of similar nature is that they depend
on factual predicates, such as package warnings, that do not pertain to the entire period at
issue in this suit. As a result they raise only a partial defense. If comment i actually
raised a categorical bar, as defendant now contends, the bar might well extend to the
entire period at issue. Defendant's argument fails, however, because to the extent
comment i reflects California law, it does not furnish a categorical defense but a question
of fact--or multiple questions of fact--for the trier of fact.
Comment i is a gloss on the general rule that "[o]ne who sells any product in a
defective condition unreasonably dangerous to the user or consumer . . . is subject to
liability for physical harm thereby caused . . . ." (Rest.2d Torts, § 402A, subd. (1).) The
entire point of comment i is to emphasize and enlarge upon the requirement that the
product must be "unreasonably dangerous." 9 This requirement "was added to foreclose
the possibility that the manufacturer of a product with inherent possibilities for harm (for
example, butter, drugs, whiskey and automobiles) would become `automatically
responsible for all the harm that such things do in the world.' " (Cronin v. J.B.E. Olson
Corp. (1972) 8 Cal.3d 121, 132, quoting Prosser, Strict Liability to the Consumer in

9 Comment i provides: "i. Unreasonably dangerous. The rule stated in this Section
applies only where the defective condition of the product makes it unreasonably
dangerous to the user or consumer. Many products cannot possibly be made entirely safe
for all consumption, and any food or drug necessarily involves some risk of harm, if only
from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil
found use under Mussolini as an instrument of torture. That is not what is meant by
`unreasonably dangerous' in this Section. The article sold must be dangerous to an extent
beyond that which would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its characteristics. Good
whiskey is not unreasonably dangerous merely because it will make some people drunk,
and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous
amount of fu[]el oil, is unreasonably dangerous. Good tobacco is not unreasonably
dangerous merely because the effects of smoking may be harmful; but tobacco containing
something like marijuana may be unreasonably dangerous. Good butter is not
unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the
arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is
unreasonably dangerous."
34
California (1966) 18 Hastings L.J. 9, 23.)
In Cronin, supra, 8 Cal.3d at pp. 134-135, the court held that the "unreasonably
dangerous" requirement is not part of California's law of strict product liability. This
holding remains good law. (See Barker v. Lull Engineering Co., supra, 20 Cal.3d 413 at
p. 417; Brown v. Superior Court (1988) 44 Cal.3d 1049, 1057; American Tobacco, supra,
208 Cal.App.3d 480, 489.) Indeed, except as modified by section 1714.45 (see section I,
above), it has been legislatively ratified. (§ 1714.45, subd. (d).) Defendant somehow
acknowledges this while still asserting that comment i, which serves only to illuminate
this inapplicable requirement, states the rule applicable to this case. Defendant cites no
California case since Cronin that has applied the comment or endorsed its application.
(Cf. Harris v. Belton (1968) 258 Cal.App.2d 595, 608; Oakes v. E .I. Du Pont de
Nemours & Co., Inc., supra, 272 Cal.App.2d 645, 648.)
Not only does comment i explicate a rule that is not part of our law, it does not by
its terms support the categorical bar to recovery defendant would have us adopt. The
comment states that to warrant liability, the product must be "dangerous to an extent
beyond that which would be contemplated by the ordinary consumer." (Rest.2d Torts,
§ 402A, com. i, italics added.) This invites a showing by an injured smoker that while
cigarettes may have been generally known or believed to pose hazards, they were in fact
far more dangerous than was "contemplated by the ordinary consumer." In arguing
otherwise, counsel flatly misrepresents applicable authority. In the reply brief counsel
writes, "Under Comment i, it is not necessary that the ordinary consumer know or
understand every possible risk associated with smoking, so long as cigarettes are `known
to be unsafe.' See American Tobacco, 208 Cal.App.3d at p. 490 (there is `no
requirement . . . that consumers fully appreciate all the risks involved')." (Italics added.)
The quoted passage actually states: "As to the second and third claims, there is no
requirement under this statute [former § 1714.45] that consumers fully appreciate all the
risks involved in the use or consumption of the products within the purview of this
section. In order to be covered by this statute it is sufficient that the ordinary consumer
knows the product is `unsafe.' " (American Tobacco, supra, 208 Cal.App.3d at pp. 489-
35
490, fn. 5, original italics omitted, new italics added.) The court then goes on to say that
but for the statute, the situation could well be different: "Evidence that the risks are
greater than those anticipated, either because the product contains unknown dangerous
elements or because it may be used in conjunction with substances that unknowingly
increase the risks involved, could possibly be used to support a claim that the product is
defective under the standards outlined in Barker v. Lull Engineering Co., supra, 20 Cal.3d
413 (see Discussion, ante, at fn. 4, p. 489).)" (Ibid., italics added.)
Defendant has failed to demonstrate any entitlement to judgment as a matter of
law on the authority of comment i.
E.
Generally Recognized Danger: Comment j.
Next defendant contends that it should receive some kind of appellate relief on the
authority of comment j to Restatement Second of Torts section 402A, which concerns the
effect on a failure-to-warn theory of common knowledge of a product's risks. Defendant
does not mention in this context any proceedings in the lower court by which this issue
was raised or preserved for appeal. We observe, however, that it was one basis for a
motion for judgment notwithstanding the verdict. Even viewing the brief as containing
an adequate specification of error, the argument on this point is woefully deficient, as
epitomized in the assertion that "[b]ecause plaintiff knew of and accepted the risks of
smoking, PM cannot be strictly liable to her." Plaintiff denied that she "knew of and
accepted the risks of smoking" as they affected her, and indeed presented evidence that
few people outside the research community and the tobacco industry appreciated the risks
of smoking at the time she was becoming "hooked." In the absence of a compelling
showing to the contrary, we presume the jury accepted this testimony and otherwise made
any findings necessary to reject defendant's factual premise. Defendant's one-page
argument on appeal does not include a compelling showing.
36
IV.
FRAUDULENT MISSTATEMENT.
A.
Misstatement.
Defendant contends that plaintiff failed to establish two elements of her claims for
fraudulent misstatement and fraudulent promise, i.e., a false representation of fact (or
actionable false promise) and actual reliance by plaintiff. As defendant puts it, plaintiff
presented "no evidence of a misrepresentation of material fact" and "no evidence of
actual reliance or causation."
A claim of "no evidence" is a claim of insufficient evidence to support the
challenged findings. One raising such a claim assumes a "daunting burden." (In re
Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) We must presume that
the record contains substantial evidence to support every finding necessary to support the
judgment. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888.) To overcome this
presumption, the party challenging a finding "must summarize the evidence on that point,
favorable and unfavorable, and show how and why it is insufficient. (Trailer Train Co. v.
State Bd. of Equalization (1986) 180 Cal.App.3d 565, 587-588.)" (Roemer v. Pappas
(1988) 203 Cal.App.3d 201, 208, italics added.) Where a party presents only facts and
inferences favorable to his or her position, "the contention that the findings are not
supported by substantial evidence may be deemed waived." (Oliver v. Board of Trustees
(1986) 181 Cal.App.3d 824, 832.)
Defendant makes no attempt to provide a fair summary of the evidence on which
the findings of fraudulent misrepresentation and reliance might (and presumptively do)
rest. We recognize that the record is exceptionally large, the scope of proof vast, and the
limitations on brief length constraining. Fairness might require relaxation of the
foregoing requirement if defendant had made a good faith effort to comply with it by at
least identifying the evidence most favorable to the judgment. Defendant, however, has
made no attempt to set forth the evidence most supportive of the finding and to "show
how and why it is insufficient." (Roemer v. Pappas, supra, 203 Cal.App.3d at p. 208.)
37
Our review of the record satisfies us that there was substantial evidence, which defendant
does not cogently dispute for purposes of this appeal, that it engaged in a conscious,
deliberate scheme to deceive the public, and individual smokers and potential smokers
(many or most of whom it knew to be adolescents), about the health hazards and
addictive effects of cigarette smoking. The jury could properly find that commencing no
later than 1953 and continuing at least until the time of plaintiff's diagnosis, defendant
and other cigarette manufacturers acted both in concert and individually to issue
innumerable false denials and assurances concerning the dangers of smoking, deliberately
fostering a false impression by the public, or more precisely by smokers and prospective
smokers, that assertions of health risk were overblown products of puritanical prejudice,
that any real hazards had yet to be shown, and that the industry itself was acting and
would act diligently to discover the scientific truth of the matter and promptly disclose its
findings, good or bad. The jury could also find that plaintiff heard of these false
assurances and denials, if only indirectly, and was falsely led to believe, as defendant
intended, that there was a legitimate "controversy" about whether cigarettes actually
caused cancer or carried any other serious health risks. As a consequence of that
information and the distorted judgment brought about by addiction, she was unaffected
by reports of adverse health effects because she was unpersuaded they were true or
reliable enough to warrant any action by her.
Defendant contends that many of the statements alleged by plaintiff were matters
of opinion and thus not actionable. This argument relies on the general rule that
statements of opinion will not support an action for fraud, while ignoring the exception
on which the jury was instructed, and which it presumptively found applicable to any
statements of opinion: " `[W]hen one of the parties possesses, or assumes to possess,
superior knowledge or special information regarding the subject matter of the
representation, and the other party is so situated that he may reasonably rely upon such
supposed superior knowledge or special information, a representation made by the party
possessing or assuming to possess such knowledge or information, though it might be
regarded as but the expression of an opinion if made by any other person, is not excused
38
if it be false.' " (Harazim v. Lynam (1968) 267 Cal.App.2d 127, 131 quoting Haserot v.
Keller (1924) 67 Cal.App. 659, 670-671.) Further, if a statement of opinion
" `misrepresents the facts upon which it is based or implies the existence of facts which
are nonexistent, it constitutes an actionable misrepresentation.' " (Id. at p. 133, quoting
Seeger v. Odell (1941) 18 Cal.2d 409, 414.) The jury here was entitled to find that
insofar as any of defendant's statements constituted opinions, they implied the existence
of superior knowledge as well as a state of facts that did not exist.
B.
Reliance and Causation.
Defendant contends that even if plaintiff showed an actionable misrepresentation,
she failed to show that she actually and reasonably relied on anything defendant said or
failed to say. Likewise defendant suggests that plaintiff failed to show the closely related
element of causation.
Defendant incorrectly asserts that "[t]here is no evidence that plaintiff ever saw or
heard . . . any . . . statements by [defendant] (or other cigarette manufacturers) relating to
the health risks of smoking." Defendant ignores plaintiff's testimony that while she
recalled "listening and seeing things that the Surgeon General was saying," she was also
aware "that the tobacco companies were saying different." (Italics added.) Thus, she
testified, package warnings never "faze[d] me one way or the other. I wasn't going to
give the cigarettes up at that point." The jury was entitled to find that by this time, in her
addicted state, plaintiff was easy prey for defendant's disinformation campaign and
readily clutched at the industry's caricature of objective inquiry.
Contrary to defendant's implicit contention, plaintiff did not have to prove that she
heard these matters directly from defendant, or from any of its coconspirators. It was
enough that the statements were, as the jury was entitled to find, issued to the public with
the intent that they reach smokers and potential smokers, and that plaintiff, as a member
of that class, heard them. As the jury was correctly instructed, "One who makes a
misrepresentation or false promise or conceals a material fact is subject to liability if he
or she intends that the misrepresentation or false promise or concealment of a material
39
fact will be passed on to another person and influence such person's conduct in the
transaction involved." (See Rest.2d Torts, § 533; Geernaert v. Mitchell (1995) 31
Cal.App.4th 601, 605 [summarizing principles and noting that "if defendant makes the
representation to a particular class of persons, he is deemed to have deceived everyone in
that class"]; Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1098 [confirming principle but
noting inapplicability where plaintiff unaware of misrepresentation]; Shapiro v.
Sutherland (1998) 64 Cal.App.4th 1534, 1548 [citing and following Geernaert];
Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
219 [applying principle to misleading advertising]; cf. Gawara v. United States Brass
Corp. (1998) 63 Cal.App.4th 1341, 1351, 1355 [indirect reliance not shown by
evidence].)
Here defendant's and its coconspirators' innumerable misrepresentations
concerning the unsettled state of relevant knowledge, and by implication the unreliability
of evidence of a cigarette-cancer link, were made with the intention and expectation that
they would circulate among and influence the conduct of all smokers and prospective
smokers. They were passed to plaintiff, who knew that while the Surgeon General was
saying one thing, the industry was "saying different." This brings her within the cited
rule.
Defendant attempts to characterize and then attack plaintiff's fraud theory as
"fraud on the market," a concept developed under federal securities law, which the court
in Mirkin, supra, 5 Cal.4th 1082, refused to import into our common law of torts. "Fraud
on the market" has nothing to do with this case. Its essential principle is that an investor
in a security, the price of which has been influenced by fraud, may be deemed to have
relied on the fraud. (Id. at p. 1089, citing Basic Inc. v. Levinson (1988) 485 U.S. 224,
241-247, 250.) Neither that rule nor its context-specific rationale has any bearing on
fraud contended to have been practiced on a vast group of consumers, causing many of
them to sustain personal injuries. The facts of this case might be more accurately called
"fraud on the public," but even that it is misleading. Plaintiff herself was an intended
target and victim of the fraud, through precisely the mechanisms of transmission intended
40
by defendant and its coconspirators. Defendant has failed to show any defect in the
jury's verdict on the affirmative fraud claims.
V.
BREACH OF EXPRESS WARRANTY.
Defendant contends that plaintiff offered "no evidence of an express warranty,"
such that the judgment in her favor "on this claim" must be reversed. The gist of this
argument is that plaintiff showed no express "affirmation of fact," as distinct from an
implication, opinion, or general commendation of goods, of which she was personally
aware, or on the basis of which she personally acted. Defendant also asserts that there
was insufficient evidence to establish that any warranty the jury might have found was
actually the basis of any bargain between plaintiff and defendant.
Defendant has once again failed to meet its burden as a party challenging the
sufficiency of the evidence. To cite the most obvious example, defendant relegates to a
footnote plaintiff's simplest evidence of a direct, express warranty from defendant.
Plaintiff testified that at some point prior to the late 1980s she began to hear that "low-tar
cigarettes were better" and that by smoking them "[y]ou wouldn't get as much tar and
nicotine." Accordingly she decided to " `check into this,' " thinking, " `Maybe I'll
change from the Reds to the Lights.' " She "did indeed call the Marlboro, Philip Morris
company and expressed, you know, my concerns as to, `Is it really true? Is there less tar
in this or less nicotine?' [¶] And I was assured at the time that if I was concerned that,
yes, I could switch to the Lights, which presented a real problem, because approximately
a month or two after switching to Lights, I went from two packs of cigarettes to three and
a half packs of cigarettes a day."
Defendant fails to "show how and why [this evidence] is insufficient" (Roemer v.
Pappas, supra, 203 Cal.App.3d at p. 208) to establish an express warranty. In a footnote
it mischaracterizes the testimony as confirming only "that if plaintiff wanted to smoke
cigarettes with less tar and nicotine, she could switch to light cigarettes." (Italics added.)
We presume the jury did not adopt this interpretation. The least that the testimony
41
reasonably could be understood to mean was that defendant represented to plaintiff that
she would take in less tar and nicotine if she switched to Lights. This proved false (the
warranty was breached) when (as defendant knew was common) plaintiff simply
increased the number of cigarettes she smoked.
Further, even though plaintiff's trial testimony about this conversation was
somewhat ambiguous, it supported an inference that defendant's representative expressly
assured plaintiff that Lights eliminated or reduced whatever risks smoking might
otherwise pose. That is, the assurance as stated at trial was that switching to Lights
would address some unspecified "concern[s]." The jury could infer that the "concerns"
discussed were related to what plaintiff said motivated the call, i.e., that she had heard
"low-tar cigarettes were better." By "better," the jury could infer, plaintiff meant
"healthier."
Even if defendant had carried its burden of showing that the record lacks
substantial evidence of an express warranty, no prejudice appears. We see no reasonable
likelihood that the jury's consideration of this theory had any effect on its findings on
other matters, notably the fraud and strict liability claims.
VI.
FRAUDULENT CONCEALMENT.
Defendant contends that the jury verdict for plaintiff on the issue of fraudulent
concealment cannot be sustained because (1) plaintiff and the public were aware of the
health risks of smoking at all relevant times; (2) "plaintiff did not prove" that she relied
on any mistaken beliefs that would have been dispelled by the posited disclosures; and
(3) any reliance would have been unreasonable as a matter of law.
Again defendant shirks its burden as a party challenging the sufficiency of the
evidence to support a particular finding--in this case the jury's implied finding that
neither plaintiff nor the public was aware of, or adequately appreciated, the health risks of
smoking. Defendant singles out two favorable passages of deposition testimony and uses
them to assert that plaintiff "was aware of the material fact that she claims was not
42
disclosed to her--that smoking cigarettes can damage one's health." In the first plaintiff
answered affirmatively the question whether "throughout the time that you smoked, you
had heard that there were risks associated with smoking, or you had heard people say
things about smoking and health; you just didn't want to believe them." (Italics added.)
In the second she acknowledged that there was a warning on every pack she picked up
after 1966. Neither of these passages constitutes a binding or compelling admission that
when plaintiff began smoking in 1961, or at any particular time thereafter, she knew of,
understood, or appreciated the dangers of cigarette smoking. In any event, citing
favorable testimony is not enough; defendant must cite the evidence supporting a
contrary finding--the finding presumptively made the by the jury--and show "how and
why it is insufficient." (Roemer v. Pappas, supra, 203 Cal.App.3d at p. 208.)
Plaintiff testified, among other things, that when she began smoking at age 15 she
did not "understand there were dangers about smoking cigarettes." Defendant disregards
this particular question and answer, but goes on to assert that plaintiff's trial testimony "is
simply not credible." It then singles out testimony in response to the question, "When
were you first aware that cigarette smoking could cause lung cancer?" Plaintiff's actual
response was, "I think my first complete awareness that cigarette smoking could cause
lung cancer was when a doctor came in and told me that I had lung cancer." She testified
that she was "baffled" by this information, which she "made them repeat to me several
times." She continued: "I just know that I must have seen the warnings, but to be fully
aware or believe that this really did cause this, it didn't register in my brain." She was
inclined to believe, and preferred to believe, that her lung cancer was the result of
asbestos exposure, and she repeatedly questioned doctors about this alternative
possibility. So complete was her "denial," as she repeatedly described it, that even after
her diagnosis she still sought ways to disbelieve it, in part to keep open the option of
taking up smoking again some day. Thus when a friend brought to her attention a report
that cigarettes contained ammonia--a substance to which plaintiff had a conditioned
aversion based on a childhood trauma--plaintiff denounced the report as " `some kind of
propaganda against the tobacco company.' "
43
We see nothing in this testimony that permits us to substitute our own judgments
of credibility for those of the jury. Based on this and other evidence, the jury was entitled
to find that plaintiff, first because of her youth and inexperience and then because of her
addiction, did not believe the package warnings but thought all information about the
health risks of smoking was "propaganda" against the tobacco companies.
Nor will we debate the evidentiary minutiae over whether the public adequately
appreciated the health risks of smoking to excuse defendant from a duty to disclose.
Instead we will presume in support of the judgment that the jury found on substantial
evidence that even if there was ample information in the public domain to convince
reasonable observers of the hazards of smoking, defendant and its fellows deliberately
interfered with the assimilation of that information, particularly by smokers and
prospective smokers. It was this class to whom defendant presumably owed a primary
duty of disclosure. Nonsmokers were far less directly affected by the issue.
At least one of the cases cited by defendant on this subject--and the only
California one--actually supports an argument in favor of the judgment. In Wawanesa
Mutual Ins. Co. v. Matlock (1997) 60 Cal.App.4th 583, 587, fn. 3, the court noted that
tobacco had long had detractors but acknowledged that much of the opposition seemed to
rest on concerns of morality or aesthetics, not on any demonstrated health hazard. The
court cited--and defendant apparently placed in evidence here--King James I's famous
1604 "Counterblaste to Tobacco," in which he pronounced smoking "[a] custome
loathsome to the eye, hatefull to the Nose, harmefull to the brain, daungerous to the
Lungs, and in the blacke, stinking fume thereof, neerest resembling the horrible Stigian
smoke of the pit that is bottomlesse." By the late nineteenth century, as the Wawanesa
court observed, smoking had come to be associated with "general licentiousness" and
"cheesy dens of iniquity." (60 Cal.App.4th at p. 587, fn. 3.) This history of moral
opprobrium provided fertile ground for the tobacco companies' disinformation campaign,
since it predisposed addicted smokers (and adolescent presmokers chafing under adult
authority) to attribute criticism of smoking to puritanical prejudice rather than sound
scientific evidence. It hardly establishes widespread knowledge among smokers or others
44
that, as a matter of scientific and medical fact, smoking poses severe risks to health.
Defendant likewise fails to carry its threshold burden on the subject of actual and
reasonable reliance. Defendant states, "plaintiff effectively admitted that any disclosures
by PM regarding the health risks of smoking would have been immaterial to her
decision." But plaintiff plainly testified that she was unmoved by package warnings only
because they failed to indicate how dangerous cigarette smoking was, and because she
knew they did not originate from the companies. As plaintiff said, "[T]here's a lot of
different degrees of danger. It's dangerous to walk across the street. When you're
hooked on something and you have the need to have that, you don't--you don't listen to
that type of warnings. [¶] Maybe if the tobacco company had come out and said: `Our
product is dangerous.' [¶] But I was listening and seeing things that the Surgeon
General was saying that the tobacco companies were saying different." (Italics added.)
Defendant has failed to carry its burden of showing that there was "no evidence,"
or insufficient evidence, to support each finding necessary to the verdict on the fraudulent
concealment theory.
VII.
NEGLIGENCE.
We do not address defendant's attack on the jury's finding of simple negligence
because the judgment is amply supported by other theories of liability and nothing that
occurred in connection with the negligence claim is reasonably likely to have affected the
outcome as to those claims.
VIII.
PUNITIVE DAMAGES.
A.
Sufficiency of Evidence.
Defendant contends that "There Is No `Clear and Convincing' Evidence to
Support the Predicate For Punitive Damages." This is another challenge to the
sufficiency of the evidence, and once again defendant has failed to carry its burden on
appeal.
45
The jury may award punitive damages "where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud, or malice." (Civ. Code,
§ 3294, subd. (a).) " `Malice' means conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others." ( Id., subd. (c)(1).)
" `Oppression' means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights." (Id., subd. (c)(2).) " `Fraud'
means an intentional misrepresentation, deceit, or concealment of a material fact known
to the defendant with the intention on the part of the defendant of thereby depriving a
person of property or legal rights or otherwise causing injury." ( Id., subd. (c)(3).)
We assume that the correct standard for review of a finding of oppression, fraud,
or malice is as stated in Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60, i.e.,
whether evidence of sufficient substantiality was presented that a reasonable jury "could
find [that] the plaintiff ha[d] presented clear and convincing evidence on the disputed
issue." (See Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287 ["all
we are required to find is substantial evidence to support a determination by clear and
convincing evidence"]; cf. Patrick v. Maryland Casualty Co. (1990) 217 Cal.App.3d
1566, 1576 ["clear and convincing evidence" standard guides only trial court and does
not affect reviewing court, which continues to apply the substantial evidence standard];
Cloud v. Casey (1999) 76 Cal.App.4th 895, 911.) Under this standard, however,
defendant still bears the burden of fairly summarizing the evidence favoring the
challenged finding and affirmatively demonstrating its insufficiency. (See Roemer v.
Pappas, supra, 203 Cal.App.3d at p. 208). Defendant's presentation fails to fairly
characterize the most damaging evidence or address its effect.
Defendant first seeks to categorically exclude two bodies of evidence from
consideration in support of the punitive damage award. First, it disingenuously asserts
that conduct after July 1, 1969, cannot be considered in light of the federal preemption
"with limited exceptions" of claims based on conduct after that time. The primary
"limited exception" is that the 1969 Act does not affect state law claims for fraud.
46
(Cipollone, supra, 505 U.S. at p. 528.) Next defendant asserts that conduct immunized
by section 1714.45 should not be considered in support of a punitive damages award.
Such an argument would merit analysis only if defendant raised a concrete possibility
that the verdict was infected by consideration of conduct within the specified period.
Insofar as defendant contends that the 11-year "immunity window" created by section
1714.45 retroactively and irrevocably deprived conduct predating that window of its
potency to support a punitive damages award now that the immunity has been repealed,
we reject the contention as lacking any discernible support in law, logic, fairness, or
public policy.
Defendant then turns to a critique of the trial court's opinion explaining its denial
of defendant's motion to set aside the punitive damages award. The court found the
evidence "fully sufficient" to support express or implied jury findings that defendant
willfully and consciously marketed its cigarettes to teenagers, violated promises and
representations to the public by concealing and suppressing information known to it
concerning the addictive and harmful properties of its product, and "affirmatively misled
the American public by advertising that there was genuine and legitimate controversy in
the scientific community on the subject of smoker health, when in fact there was no such
controversy." It is in response to these points that defendant largely abandons any
attempt to fairly summarize or address the evidence underlying the judgment.
Defendant asserts that the finding of "targeting of teenagers" rested on the
rationale that "Most people who become cigarette smokers begin smoking by age 19, so
cigarette companies must target teenagers." This is not a fair characterization of the
record or of the trial court's opinion. Defendant attacks various documents cited by the
trial court on the ground that they were not shown to have been authored by a corporate
officer, director, or managing agent. But even if we accept this premise--which again, is
not demonstrated but simply asserted as a fact--the primary relevance of these materials
was not to show conduct by their authors but as admissions of corporate conduct and
circumstantial evidence of the mental state of corporate officers, directors, and
47
managers.10 As defendant concedes, the particular document it most vigorously attacks
was a draft presentation to defendant's Board of Directors. It was not deprived of all
evidentiary force by its "draft" status. A "draft" is defined and understood as " [a]
preliminary sketch or rough form of a writing or document, from which the final or fair
copy is made." (4 Oxford English Dict. (2d ed. 1989) p. 1008.) From the existence of a
draft, the existence of a "final fair copy" may be reasonably inferred. And where a draft
document is relevant for its central theme (rather than some incidental feature), it may be
inferred that the theme survived into any final version.
Defendant offers the notion that marketing its products to "teenagers" does not
establish reprehensible conduct because 18 and 19-year olds are "teenagers" who may
lawfully purchase and consume cigarettes. The argument is unsound. Moreover none of
the documents cited by the trial court limits itself to 18 and 19-year olds. They discuss
smoking habits and "market penetration" among children as young as 12 without the
slightest acknowledgment of legal niceties such as defendant now asserts. One document
reviews the history of Marlboro's success and the business risks posed by a coming
decline in the number of teenagers, and includes the statement, "Because of our high
share of the market among the youngest smokers, Philip Morris will suffer more than the
other companies . . . ." (Italics added.)
Defendant asserts that its attempts to prevent the official classification of nicotine
as a "drug" cannot support an award of punitive damages. Defendant directs us to no
indication that plaintiff, the trial court, or the jury placed any reliance on such conduct. It
is true that plaintiff played a videotaped excerpt from testimony before Congress in

10 The documents cited by the trial court amply showed knowledge by defendant that its
Marlboro cigarettes were particularly successful among children. Another document
shows that this was no accident, but the deliberate result of symbols consciously
manipulating the adolescent mentality: "Marlboro's traditional area of strength has, of
course, been young people because the principal message its imagery delivers is
independence. For young people who are always being told what to do, the Marlboro
man says, `I'm in charge of my life. [¶] . . . . [¶] [T]he maturity of the Marlboro man
makes him representative of the ideal smoker--self confident and secure."
48
which a Philip Morris executive apparently stated that he did not believe nicotine to be
addictive. Elsewhere in its brief defendant contends that this evidence was inadmissible.
We do not decide the question because we do not think there is any significant possibility
that it affected the outcome.
Defendant contends that its failure to disclose that cigarettes are addictive does not
support a punitive award because "it is, at bottom, a quibble over definitions." If so, it is
a quibble of which the tobacco industry is the chief author and beneficiary. The question
is not whether the term "addictive" applies to cigarettes in some narrow medical sense
but whether a reasonable effort should have been made to bring home to defendant's
mostly teenage "starters" market the extreme difficulty they were likely to encounter in
any future attempt to stop smoking. To borrow language used in 1965 congressional
hearings, "For many people, the choice to smoke, once it has been made, may as a
practical matter be irrevocable." (Cigarette Labeling and Advertising Hearings before
Sen. Com. on Commerce on Sen. Nos. 559 and 547, 89th Cong., 1st Sess., at p. 500
(1965).)
We have examined defendant's remaining points concerning the evidence of
oppression, fraud, or malice, and find them to be insufficient to carry defendant's burden
of showing that the finding on that subject was marred by error.
B.
Size of Award.
Defendant contends that the punitive damages award is excessive for two
interrelated reasons: first, that it was the product of passion and prejudice, and second,
that the objective factors by which such an award is reviewed on appeal all point toward a
finding that it exceeds the amount necessary and proper to punish and deter. Defendant
invokes California authorities applying the statutory and common law of this state, and
federal authorities holding that punitive damage awards implicate constitutional concerns.
Under California law, a punitive damage award may be reversed as excessive
"only if the entire record, viewed most favorably to the judgment, indicates the award
was the result of passion and prejudice." (Stevens v. Owens-Corning Fiberglas Corp.,
49
supra, 49 Cal.App.4th 1645, 1658.) "The purpose of punitive damages is a public one--
to punish wrongdoing and deter future misconduct by either the defendant or other
potential wrongdoers. The essential question for the jury, the trial court, and the
appellate courts is whether the amount of the award substantially serves the public
interest in punishment and deterrence. The California Supreme Court has established
three criteria for making that determination: (1) the reprehensibility of the defendant's
misdeeds; (2) the amount of compensatory damages, though there is no fixed ratio for
determining whether punitive damages are reasonable in relation to actual damages; and
(3) the defendant's financial condition. [Citations.] The wealthier the wrongdoer, the
larger the punitive damage award must be to meet the goals of punishment and
deterrence. [Citations.]" ( Ibid.)
In addition, "The Due Process Clause of the Fourteenth Amendment [to the United
States Constitution] prohibits a State from imposing a ` "grossly excessive" ' punishment
on a tortfeasor." (BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 562
(BMW).) This constraint apparently rests on issues of notice. ( Id. at p. 574 ["Elementary
notions of fairness enshrined in our constitutional jurisprudence dictate that a person
receive fair notice not only of the conduct that will subject him to punishment, but also of
the severity of the penalty that a State may impose."].) It is at least arguable, and we
assume for purposes of our analysis, that in assessing whether an award comports with
these constitutional principles, we must review the trial court's determination de novo.
(Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, ___ [121
S.Ct. 1678, 1683, 1685-1686] (Cooper Industries).)11 The factors to be considered are

11 Cooper Industries held that a federal appellate court had to address the excessiveness
issue de novo where the district court had refused to set aside an award of punitive
damages. The court indicated that an "abuse of discretion" standard would be consistent
with due process if the award under scrutiny was made under, and in compliance with, a
state law fixing a statutory ceiling for punitive damage awards. (Cooper Industries,
supra, [121 S.Ct. at p. 1684, fn. 6], citing BMW, supra, 517 U.S. at pp. 614-619 [app. to
dis. opn. of Ginsburg, J.].) Later the court indicated that de novo review might not be
required where state law "tied the award of punitive damages more tightly to the jury's
50
(1) the degree of the defendant's culpability, i.e., the reprehensibility of his or her
conduct, (2) the ratio between the punitive award and the harm to the victim caused by
the defendant's actions, and (3) the sanctions imposed in other cases for comparable
misconduct. (Cooper Industries, supra, 121 S.Ct. at pp. 1685-1686, 1688; see BMW,
supra, 517 U.S. at p. 575.)
Addressing the constitutional issues first, we do find defendant's conduct as
reflected in the present record reprehensible. The record reflects that defendant touted to
children what it knew to be an addictive and cumulatively toxic product while doing
everything it could to prevent addicts and prospective addicts from appreciating the true
nature and effects of that product. The expected and intended result of this conduct was
that millions of youngsters were persuaded to, and did, enslave themselves to a habit that
was likely to, and did, bring many of them to an early loss of the enjoyment of life,
illness, and death. We agree with the jury and the trial court that only a very substantial
award was sufficient to reflect the moral opprobrium in which defendant's conduct can
and should be held.
Nor do we find the award "grossly excessive" by virtue of the 17:1 ratio between
punitive damages and compensatory damages. While acknowledging the absence of any
"bright line" mathematical test, defendant cites dictum from Pacific Mut. Life Ins. Co. v.
Haslip (1991) 499 U.S. 1, 23-24, to imply that a 4:1 ratio between compensatory and
punitive damages may approach some sort of per se constitutional line. The court's
concern was fueled by two points defendant neglects: the award was also "200 times the
out-of-pocket expenses" incurred by the plaintiff and "much in excess of the fine that
could be imposed for insurance fraud." ( Ibid.) Moreover, in TXO Production Corp. v.

finding of compensatory damages." ( Cooper Industries, supra, [121 S.Ct. at p. 1687, fn.
13].) "This might be the case, for example, if the State's scheme constrained a jury to
award only the exact amount of punitive damages it determined were necessary to obtain
economically optimal deterrence or if it defined punitive damages as a multiple of
compensatory damages (e.g., treble damages)." ( Ibid.) We assume for present purposes
that California has no comparable statutory ceiling, and that de novo appellate review is
therefore mandated under Cooper Industries.
51
Alliance Resources Corp. (1993) 509 U.S. 443, the court sustained a punitive award of
$10 million, 526 times the $19,000 actual damages award. (Id. at p. 453). The "shock"
of this disparity, observed the court, "dissipates when one considers the potential loss to
[the plaintiff] . . . had petitioner succeeded in its illicit scheme." (Id. at p. 462, italics
added.) The court held that even if the potential losses were fixed as low as $1 million--
resulting in a 10:1 ratio of punitive to potential damages--the disparity would not " `jar
one's constitutional sensibilities.' " (Id. at p. 462, quoting Haslip, 499 U.S. at p. 18.)
Defendant notes that the court in BMW considered, as a guideline to the soundness
of the punitive award, statutory penalties for the misconduct at issue. The same is true,
as we have observed, in Pacific Mutual. Seeking support in this approach here,
defendant cites California statutes imposing penalties of no more than $6,000 for
furnishing tobacco products to persons under 18. (Bus. & Prof. Code, § 22958 [civil
penalty from $200 for first offense to $6,000 for fifth offense]; Pen. Code, § 308 [penal
fine of $200 for first offense up to $1,000 for third offense].) Defendant also cites the
1969 Act, which allows penalties up to $10,000 for violating its provisions. (15 U.S.C. §
1337.) We think the argument under the state statutes backfires. Assuming plaintiff
smoked for three years before reaching the age of 18, and assuming defendant (by its own
analogy) furnished cigarettes to her every day of that time, its conduct would seemingly
constitute nearly 1100 violations of the two California statutes cited. Assessing the
maximum civil penalty of $6,000 would yield a total penalty of $6.6 million dollars. The
penalty would be much higher if the statute were viewed as permitting each cigarette
furnished to serve as the predicate for a distinct violation. Furthermore, defendant
overlooks the exposure of every person in this state to civil penalties of $2,500 per
violation for any act of "unfair competition" (Bus. & Prof. Code, § 17206), which
includes "any unlawful, unfair or fraudulent business act or practice and unfair,
deceptive, untrue or misleading advertising" (id., § 17200). This statute could seemingly
be applied, by analogy to defendant's argument, to sales of cigarettes to plaintiff not only
when she was a minor but throughout her 35-year smoking history.
Moreover, as we have noted, the Supreme Court's interest in examining statutory
52
penalties stems from concerns about notice as it bears on the fundamental fairness, or
unfairness, in imposing a specific award. Defendant has long known that it was at risk
for civil liability based upon its products, and we may readily infer that it also knew it
was at risk for liability under traditional common-law concepts like fraud, which at the
time of most of the relevant conduct would support virtually unlimited punitive damage
awards. The trial court quoted from a 1980 internal document reporting that defendant's
attorneys had been saying that " `the entire matter of addiction is the most potent weapon
a prosecuting [sic] attorney can have in a lung cancer/cigarette case. We can't defend
continued smoking as " free choice" if the person was "addicted." ' " Defendant
obviously knew that the risks of pursuing its course were very high indeed. It
nonetheless pursued that course. That it can be compelled to disgorge a tiny fraction of
the resulting profits as a punitive award does not offend our conscience, constitutional or
otherwise. We detect no constitutional infirmity in the award.
Turning to state-law review for "passion or prejudice," we observe that in addition
to the reprehensibility we have already discussed, defendant's vast financial resources,
presumably built largely on the very conduct here at issue, justified a very large award.
The trial court stated, and defendant does not contest, that defendant's net worth at the
time of the award was over $3.4 billion. As the court noted, a $25 million award
represents less than 3/4 of one percent of that sum. Defendant asserts that this factor does
not answer a federal constitutional objection, but we do not cite it in that context. The
award is of sufficient size to "sting," without posing any danger that it will "kill."
(Troensegaard v. Silvercrest Industries, Inc., supra, 175 Cal.App.3d 218 at p. 227.)
Defendant contends that the award is excessive in light of the potential for other
actions like this one in which punitive damages may also be awarded, magnifying the
deterrent effect. Multiplicity of awards is a factor that may be weighed, and on proper
presentation presumably should or must be weighed, in fixing a punitive damage award.
"Punitive damages previously imposed for the same conduct are relevant in determining
the amount of punitive damages required to sufficiently punish and deter." (Stevens v.
Owens-Corning Fiberglas Corp., supra, 49 Cal.App.4th at p. 1661.) "The likelihood of
53
future punitive damage awards may also be considered, although it is entitled to
considerably less weight." ( Ibid.; accord, Vossler v. Richards Manufacturing Co. (1983)
143 Cal.App.3d 952, 969, disapproved on other grounds in Adams v. Murakami (1991)
54 Cal.3d 105, 115-116; see Delos v. Farmers Insurance Group (1979) 93 Cal.App.3d
642, 667; Rest.2d Torts, § 908, com. e; 6 Witkin, Summary of Cal. Law (9th ed. 1988)
Torts, § 1328, p. 786.)
In its careful evaluation of punitive damages here, the trial court expressly cited
the possibility of future awards as one reason to reduce the jury's award from $50 million
to $25 million. The court predicted that numerous suits would be filed against defendant,
that the costs of defense and any resulting judgments would be substantial, that punitive
damages "undoubtedly will be requested and may well be awarded in many such suits,"
and that this reinforced the court's conclusion "that $25 million is enough to punish and
deter in the present context." Defendant's argument is that the award should have been
reduced even further. We can find no fault in the trial court's reasoning on this point.
The extent to which other plaintiffs may succeed remains to be seen. To predict the
success rate of such future litigation would be purely speculative, and the trial court
might have been justified in refusing to give that factor any weight whatsoever. As it
stands, defendant has shown nothing more than "the mere possibility of a future award in
a different case," which of itself "is not a ground for [further reducing] the award in this
case . . . . If [defendant] should be confronted with the possibility of an award in another
case for the same conduct, it may raise the issue in that case." ( Grimshaw v. Ford Motor
Co. (1981) 119 Cal.App.3d 757, 812; Stevens v. Owens-Corning Fiberglas Corp., supra,
49 Cal.App.4th at pp. 1661-1662; Vossler v. Richards Manufacturing Co., supra, 143
Cal.App.3d at pp. 968-969.)
Insofar as the award is challenged under California law, we cannot say that, as
reduced by the trial court, it is the product of passion and prejudice. Reviewing it de
novo under federal constitutional principles, we cannot say that it was "grossly
excessive."
54
DISPOSITION
The judgment is affirmed.
_________________________
Sepulveda, J.
We concur:
_________________________
Reardon, P.J.
_________________________
Kay, J.
55
Trial Court:
San Francisco County Superior Court
Trial Judge:
Honorable John Munter
Counsel for Appellant:
Gerald V. Barron
Lucy E. Mason
Shook, Hardy & Bacon L.L.P.
M. Laurence Popofsky
Curtis M. Caton
David B. Goodwin
Wayne Stephen Braveman
Heller Ehrman White & McAuliffe
Counsel for Respondent:
Daniel Upham Smith
Ted W. Pelletier
Law Offices of Daniel U. Smith
Harry F. Wartnick
Madelyn Joyce Chaber
Wartnick, Chaber, Harowitz, Smith & Tigerman
56

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