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USA: Jury Orders Philip Morris to Pay Record $3 Billion

by Jessica Wohl and Brad DorfmanReuters
June 7th, 2001

NEW YORK -- Shares in Philip Morris Cos. Inc. and other tobacco companies slipped on Thursday after a jury ordered the cigarette giant to pay a record $3 billion in damages to a smoker, but investors remained calm amid expectations the verdict will be overturned or reduced.

The Los Angeles jury's award, made to Richard Boeken, a Marlboro smoker with incurable lung and brain cancer, was the largest individual punitive damages award ever against a cigarette maker. It was announced on Wednesday after the market closed.

''This verdict was pretty ugly, but it's not a disaster,'' said Credit Suisse First Boston analyst Bonnie Herzog. ''The stocks are weak, as expected, but I think most investors understand that this will be reduced and there's a strong chance that it gets overturned on appeal.''

Shares of Philip Morris, which makes Marlboro and other brands, initially skidded as low as $47.05, a six-percent fall from Wednesday's close of $50.00, before rebounding to end with a loss of less than three percent at $48.52 on the New York Stock Exchange. The shares are still at more than double their 52-week low.

''We are doing nothing at this point of time,'' Tim Drake, who follows tobacco stocks at Banc One Investment Advisors, which has ''significant'' holdings in Philip Morris and its rival R.J. Reynolds Tobacco Holdings Inc. as well as some shares in Loews Corp., parent of Lorillard Tobacco Co.

He said he expected the tobacco companies would lose some individual cases before juries, but he will wait and see what happens on appeal.

The Standard & Poor's tobacco index, which tracks Philip Morris and other tobacco-related companies, ended down 2.95 percent. Among the worst hit was R.J. Reynolds, whose shares declined 5.42 percent.

Even tobacco industry opponents said the verdict was likely to be reduced by the judge or overturned completely on appeal.

''Looking at history, the chances are that it may not stand at this size,'' conceded Patti Lynn, associate campaign director of corporate watchdog group Infact, which has battled tobacco companies over their marketing practices. ''But there's always a first time, also.''

In the case, the Los Angeles Superior court jury awarded $3 billion in punitive damages and $5.5 million in compensatory damages to Boeken, a securities and oil broker whose lung cancer has spread to his brain. The jury found against the company -- which earned almost $11 billion last year from tobacco sales alone -- for fraud, negligence, and making a defective product.

The jury's award for Boeken is the fourth largest verdict ever to an individual or family, according to Lawyers Weekly USA, a legal newspaper that tracks jury verdicts.

It follows hot on the heels of a federal jury verdict earlier in the week that found Philip Morris and several other cigarette makers engaged in deceptive business practices in a case brought by Empire Blue Cross Blue Shield.

Philip Morris had conceded in the Boeken case that cigarettes were addictive, but said warnings on cigarette packages made it clear they cause cancer. The company has argued that the jury had been given improper instructions and prevented from hearing key evidence.


JURY ''DISREGARDED'' INSTRUCTIONS

Michael York, a Washington lawyer for Philip Morris, said the company plans to file one or more post-trial motions in the next two weeks, seeking to have the whole verdict set aside, have the punitive part of the verdict set aside or have it severely reduced.

''We've thoroughly analyzed this jury form and we're still very much of the opinion that the jury disregarded the instructions of the court and based its verdict on things that probably weren't in evidence,'' York said.

He said the company has no plans to change its defense if the case were to be retried.

''This is exactly the same kind of case that we've presented to numerous juries in numerous cases over the last year or two and virtually all of those have resulted in verdicts for the company. We're reviewing this case to figure out how this jury arrived at this verdict,'' York said.''

Philip Morris has two weeks to file post-trial motions and the judge then has 60 days to render his decision. If he does not make a decision within that time, the motions are deemed denied.

William Pecoriello, an analyst at Sanford Bernstein, estimated that the courts will find the award unconstitutionally high and lower the damages to somewhere in the $20 million to $100 million range, consistent with prior California rulings.

The verdict is unlikely to lead to a rise in the number of individual claims either in California or around the United States, said Salomon Smith Barney analyst Martin Feldman. He said the two previous losses in California, the Henley and Whiteley cases, have not led to a rise in cases filed in the state.

Feldman said plaintiffs lawyers are likely waiting to see how the appeals in those cases go before filing further claims. He said it could take close to 12 months before a decision is issued in the first appeals in Whiteley and Henley.

However, trial lawyers in California said more suits could follow in a region famed for its hostility to cigarette makers.

''There has been a remarkable lack of filings in California probably because of the cost and the risk. But it is beginning to look like the risk in California and Oregon ain't too high,'' said Bob Brown, an attorney with a San Francisco firm which successfully represented smokers in two earlier lawsuits there.

Herzog of CSFB said the next case she's keeping her eyes on is the Scott class-action medical monitoring case, which is set to start in Louisiana on June 18. In that case, a group of smokers are trying to get the industry to pay for their medical costs going forward.

Despite the doubts about whether the verdict will stand, anti-tobacco forces said it should send a message to the industry.

''It's encouraging, because that jury looked at the industry and they were mad,'' J.D. Lee, a Knoxville, Tennessee-based lawyer who has litigated against the industry, said. ''It's very encouraging that juries are recognizing the damage the industry has done.''

Norwood ''Woody'' Wilner, a pioneering Florida anti-tobacco lawyer who in 1996 won a $750,000 judgement for a sick smoker in a case that rocked Wall Street, said he was encouraged by the scope of the $3 billion verdict and called on the industry to come clean now.

''Every time we have a trial where the legal maneuvering stops and the facts come out, we have a disaster for the cigarette industry. I think they need to start making some plans for how they are going to deal with these cases in a realistic way.''

Among the other tobacco company shares to suffer losses was British American Tobacco Plc, the world's second-largest cigarette maker, which slipped 3.23 percent in London. Loews Corp. lost 5.22 percent and Vector Group Ltd., parent of Liggett Group Inc., dipped 0.53 percent.





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