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Horvitz & Levy LLP represented defendant Philip Morris USA, Inc. in this case, which turns on the interplay between two separate actions filed against Philip Morris for causing a smoker’s physical injury and ultimate death. In an earlier action, the smoker’s wife sued for loss of consortium, alleging a permanent invasion of the marital relationship. The wife dismissed that action with prejudice however, and her husband went on to obtain a judgment that required Philip Morris to pay over $80 million, including interest. After her husband’s death, the wife brought the present wrongful death case, again seeking compensation for her husband’s lost companionship and affection. 

The trial court dismissed the action on the ground it was barred by res judicata. The Court of Appeal agreed; the majority opinion explained that the prior claim and the subsequent claim both were grounded in the same “primary right”; bringing two separate lawsuits improperly split a single cause of action. The wife sought review by the California Supreme Court, arguing that she could not have collected post-death consortium damages in the first action, and should be allowed to do so in the second. The Supreme Court disagreed. The court confirmed that the wife’s consortium claim brought as part of her wrongful death action invoked the same primary right as her former pre-death loss of consortium claim. In the course of that ruling, the court explained that the plaintiff could, in fact, have obtained all of her future damages in the first action had she pursued it to conclusion. As a result of this ruling, both plaintiffs and defendants can avoid wasteful, duplicative litigation that would have been required under a contrary analysis (endorsed by the plaintiff) that would have split consortium claims into separate pre-death and post-death “causes of action.”