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Boeken v. Philip Morris USA Inc., B236875

Judgment for plaintiff, decedent's son, in a wrongful death action against defendant for decedent's death from lung cancer he developed from smoking defendant's cigarettes is affirmed, where: 1) 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 not measured from the decedent's post-injury diminished condition at the time of death, as claimed by defendant; 2) the trial court properly instructed the jury; but 3) plaintiff may not recover interest on his award because his Code of Civil Procedure section 998 offer of settlement did not include the statutorily required "provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted."

Appellate Information

  • Decided 07/09/2013
  • Published 07/09/2013


  • MOSK


  • California Court of Appeal


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