A judgement worth the earnings of 3,000 lifetimes

Don't say lawsuits can't be fun. Like the woman in Knoxville who's suing McDonald's because the pickle on her Big Mac was too hot. This 'dangerous and defective product' slipped out of the bun and put a blister on her chin, allegedly causing some problems in her marriage. She says she'll put the matter to rest for $125,000. Or the Texas guy who's suing a topless bar, saying he got neck and back injuries when an exotic dancer bounced over and knocked him off his chair with her ample bosom.

Richard Boeken's case is more serious and more expensive. A lifelong smoker, Boeken, 56, gave a thumbs-up sign as the super-jackpot verdict in his case was recently announced, the largest judgment ever made in an individual smoker's suit against Big Tobacco, and one of the biggest individual verdicts in American history.

Deciding that cigarette manufacturer Philip Morris was responsible for Boeken's incurable lung cancer, a Los Angeles jury awarded Boeken $5.5 million in general damages and $3 billion in punitive damages.

'Those are valuable lungs, this plaintiff's,' commented William F. Buckley Jr. 'At $3 billion, they're worth more than the Empire State Building and Rockefeller Center combined.'

A SHELTERED LIFE

Today in America, there are 50 million smokers and 50 million ex-smokers. What those numbers say is that it's not impossible to beat the habit, and there's not enough money to pay $3 billion to everyone who kills himself with cigarettes (if there were, smokers would have, in very short order, enough courtroom winnings to buy up everything in Manhattan and every beach house from Maine to Key West).

Boeken began smoking in 1957, at age 13, back before warnings were put on cigarette packs, and averaged two packs of Marlboros a day for 40 years - in all, 584,000 cigarettes. Jacob Sullum, senior editor at Reason magazine, explains the verdict: 'Richard Boeken, a ... securities broker from Topanga, California, is dying of lung cancer. But that's not why a Los Angeles jury decided Philip Morris should pay him $3 billion. Boeken was awarded this prize in recognition of an amazing feat: He managed to live for nearly half a century without realizing that cigarette smoking is a dangerous habit. Or so he says. According to CNN, Boeken testified that he 'never heard or read about the health risks of smoking until congressional hearings were held in 1994.' This claim does not simply strain credulity; it smashes credulity into a million tiny pieces.'

An editorial in the Salt Lake Tribune reaches the same conclusion: 'Where was this guy living when he puffed all those packs - a deserted island• Certainly he was not living in the United States, where, for almost 40 years, cigarette packs have carried government warnings that tell smokers probably the only thing more harmful to your health than smoking would be standing in the middle of a high-level nuclear waste dump for 40 years.'

LOTS OF RED FLAGS

It's true that warning labels weren't on cigarette packs when young Boeken lit up his first cigarette, but, as Sullum reports, the health risks related to smoking were a major focus of public conversation while Boeken was growing up: 'Studies linking cigarettes to lung cancer received wide attention in the early '50s, leading to what history books describe as 'The Cancer Scare.' Those reports were followed by two dozen others - all of which apparently escaped Boeken's attention.'

Warning labels began appearing on cigarette packs in 1966, when Boeken was 22. In 1972, when Boeken was 28, warning labels began appearing in every cigarette ad. In addition, says Sullum, Boeken 'ignored or dismissed the public service announcements, newspaper and magazine articles, TV and radio reports, posters, pamphlets, buttons, billboards, and bumper stickers that highlighted the most widely publicized health hazard of the 20th century.'

Happy with the verdict (and set to pocket $900 million if the award is upheld on appeal), Boeken's attorney, Michael Piuze, paints a different picture, explaining that his client had kicked heroin, methadone and alcohol but just couldn't get off the Marlboros. Calling Philip Morris 'the world's biggest drug dealer, something that puts the Colombian drug cartels to shame,' Piuze argued in court that Boeken was a victim of a decades-long tobacco industry campaign to promote smoking as 'cool.'

University of Colorado law professor Paul Campos sees 'a genteel species of theft' in such suits: 'Mr. Boeken testified under oath that he did not become aware of warnings regarding the dangers of cigarettes until the mid-1990s. As a reward for perjuring himself in such a ludicrous fashion, he has won a $3 billion dollar judgment from a Los Angeles jury, a sum of cash equal to what a working class person (that is, a typical smoker) would earn over the course of approximately 3,000 lifetimes.'

On the same day that Boeken was awarded $3 billion, a new Rand Institute study was released announcing that obese people invite greater health risks than daily smokers or heavy drinkers, and that three of every five adult Americans are either overweight or obese. I can only imagine the award that will some day be given to the first lifetime victim of Ben & Jerry, the hippie entrepreneurs who 'should have known' about the addictive powers of Chunky Monkey and Chubby Hubby. With the enticements on their packages and seductive products inside, these guys make Pablo Escobar look like an amateur.

Ralph R. Reiland is the B. Kenneth Simon professor of free enterprise at Robert Morris College and a local restaurateur. E-mail him at: rrreiland@aol.com