Boeken v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 1391, review granted May 21, 2008, S162029

Horvitz & Levy represents Philip Morris USA, Inc. in this pending California Supreme Court case, in which the Court will decide whether, under the doctrine of res judicata, the dismissal of a loss of consortium action bars a subsequent wrongful death action seeking the same damages. 

Plaintiff Judy Boeken's husband suffered from lung cancer that he attributed to his use of defendant Philip Morris's products.  After her husband became ill, but prior to his death, plaintiff filed a lawsuit in which she claimed that because of defendant's wrongful conduct (selling her husband cigarettes), she had been deprived and would be permanently deprived of her husband's consortium.  She subsequently dismissed her loss of consortium action with prejudice.  After her husband died, plaintiff brought a wrongful death action, once again seeking to recover for the loss of her husband's consortium.  The Court of Appeal held that plaintiff's second action was barred by the doctrine of res judicata.  Specifically, it held that because plaintiff's wrongful death action was based on the same wrongful conduct by defendant and the same harm to plaintiff, her second action was barred. 

As framed by the Supreme Court, the issue to be decided is, did the doctrine of res judicata bar plaintiffs claim for noneconomic damages in a wrongful death action after her husband died, because she had dismissed with prejudice a claim for loss of consortium while he was alive?

Home | Firm Directory | About H & L | Practice Areas | H & L News
Seminars | Publications | Recruiting | Directions | Links | Site Map