Whiteley v. Philip Morris

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Filed 4/29/04 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A091444 LEONARD WHITELEY, Plaintiff and Respondent, (San Francisco County Super. Ct. No. 303184) v. PHILIP MORRIS INC. et al., ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] Defendants and Appellants. THE COURT: It is ordered that the opinion certified for publication and filed herein on April 7, 2004, be modified as follows: 1. Footnote 5 on pages 5 and 6 should be deleted in its entirety and replaced with a new footnote 5, to read as follows: 5. We are using the term addicted as shorthand. We do not here declare as a judicial fact that tobacco is addictive in any settled medical sense. That question is not before us. The jury could find that tobacco was addictive in the sense supported by the evidence and supportive of the judgment. 2. In footnote 10 on page 17, the last full paragraph of the footnote citing to Henley v. Philip Morris, Inc., supra, 114 Cal.App.4th 1429, 1441-1444, should be deleted. 1 3. On page 52, in the second paragraph, the citation to Henley v. Phillip Morris Inc., supra, 114 Cal.App.4th at p. 1467 should be deleted. The new citation following the quote in the second paragraph should now begin with: (See Geernaert v. Mitchell (1995) 31 Cal.App.4th 601, 605 . . . .) 4. The paragraph commencing at the bottom of page 65 with Recently, Division Four of this court . . . and ending at the top of page 66 with . . . more ready to believe defendants than were nonsmokers is modified to read as follows: Furthermore, the question here is not whether the public adequately appreciated the health risks of smoking to excuse defendants misrepresentations and false promises. Instead we will presume in support of the judgment that the jury found on substantial evidence that even if there were ample information in the public domain to convince reasonable observers of the hazards of smoking, defendants and their agents deliberately interfered with the assimilation of that information, particularly by smokers and prospective smokers. It was this class to which Whiteley belonged and to which defendants presumably owed a primary duty not to mislead. Nonsmokers were far less directly affected by the issue. Evidence was presented in this case that smokers were less attuned to warnings and more ready to believe defendants than were nonsmokers. 5. On page 66, the first full paragraph commencing with Henley also observed: . . . should be deleted in its entirety. 6. The paragraph commencing at the bottom of page 66 with A fortiori, in this case . . . and ending at the top of page 67 with . . . was reasonable in the circumstances is modified to read as follows: In this case, where we review fraud verdicts premised upon affirmative misrepresentations and false promises regarding the health risks of smoking and what actions defendants were taking and would take with respect to the controversy, we believe that substantial evidence supports the jury s determination that Whiteley s reliance was reasonable in the circumstances. 7. On page 70, in the last full paragraph, the point page in the cite to Rutherford, supra, 16 Cal.4th 953, should be modified to read 977. 8. On page 78, the first full paragraph should be modified to read as follows: Nevertheless, we need not determine whether the Rutherford variant on proof of causation applies here, because it is clear that the evidence is insufficient 2 to support the jury s finding even under that standard. (See Kennedy v. Southern California Edison Co. (9th Cir. 2001) 268 F.3d 763, 770.) Increased risk alone is not actionable. In toxic tort cases generally, plaintiffs must establish, to a reasonable medical probability, their illnesses were caused by the toxic exposure. The fact the chemicals increased the possibility of sickness in the overall population does not suffice to provide a causal link with plaintiffs illnesses. (Flahavan et al., supra, [ΒΆ] 2:985.1, p. 2-316.4.) There is no change in the judgment. Respondent s petition for rehearing is denied. ___________________________________ KLINE, P.J. 3 Trial Court: San Francisco County Superior Court Trial Judge: Honorable John E. Munter Attorneys for Appellants: Heller Ehrman White & McAuliffe, LLP M. Laurence Popofsky Curtis M. Caton David B. Goodwin Nina A. M. Greeley Howard, Rice, Nemerovski, Canady, Falk & Rabkin H. Joseph Escher III Richard Shively Shook, Hardy & Bacon, LLP Gerald V. Barron Mordecai D. Boone Womble, Carlyle, Sandridge & Rice Jeffrey L. Furr Christopher A. Kreiner William E. Latham II Attorneys for Respondent: Wartnick, Chaber, Harowitz & Tigerman Harry F. Wartnick Madelyn J. Chaber Robert M. Brown Law Offices of Daniel U. Smith Daniel U. Smith Ted W. Pelletier 4