Boeken

INTRODUCTION

Richard Boeken (Richard) brought an action against Philip Morris USA Inc. (Philip Morris) seeking damages for lung cancer he developed from smoking Philip Morris cigarettes and was awarded compensatory and punitive damages. He died while the verdict was on appeal. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640 [ 26 Cal.Rptr.3d 638 ] (Richard’s action).) In this case, Dylan Boeken (Dylan), Richard’s son, brought a wrongful death action against Philip Morris for Richard’s death and recovered $12.8 million for loss of consortium.

On appeal, in the published portion of this opinion, we discuss and reject Philip Morris’s contentions that the trial court failed to instruct the jury on the proper measure of Dylan’s damages. Relying on Blackwell v. American Film Co. (1922) 189 Cal. 689 [ 209 P. 999 ] (Blackwell), Philip Morris contends that when a personal injury plaintiff who was fully compensated in a lawsuit for his injuries and resulting physical incapacity dies from those injuries, a surviving child’s wrongful death loss of consortium damages are measured from the decedent’s postinjury diminished condition at the time of death. Also in the published…