Whiteley v. Philip Morris, Inc. (117 Cal. App. 4th 635, 2004)

Opinion

KLINE, P. J.

Introduction

Defendants Philip Morris Inc. (Philip Morris) and RJ. Reynolds Tobacco Company (RJ. Reynolds) appeal from a judgment of $21,689,117 (including $20 million in punitive damages) following a jury verdict in favor of Leslie Whiteley (Whiteley), a smoker who was diagnosed with lung cancer in 1998 and died in July 2000, and her husband, plaintiff Leonard Whiteley.

Defendant tobacco companies urge us to reverse the judgment, claiming error on several grounds: (1) Under Civil Code, former section 1714.45, as recently interpreted by the California Supreme Court in Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828 [123 Cal.Rptr.2d 40, 50 P.3d 751] (Myers) and Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856 [123 Cal.Rptr.2d 61, 50 P.3d 769] (Naegele), defendants cannot be liable for fraud, negligent design, or other such product liability claims based on conduct occurring from January 1, 1988 to January 1, 1998. Defendants contend that the trial court prejudicially erred in refusing to instruct the jury, as requested by defendants, that it could not base liability on conduct occurring during this 10-year period. Defendants also contend that the fraud verdicts are factually and legally flawed, arguing: (2) that much of plaintiff’s fraud claim is preempted by the Federal Cigarette Labeling and Advertising Act of 1969 (15 USC §§ 1331-1340), and (3) that the record does not support the jury’s finding of reasonable reliance. (4) Defendants also contend the negligence verdict fails because plaintiff failed to present substantial evidence of any safe alternative design or that defendants’ alleged failure to produce a safer cigarette caused Whiteley’s injury. They further argue the court erred in refusing to instruct the jury in terms of BAJI No. 9.00.6. (5) Finally, defendants attack the punitive damages award.

We shall conclude: (1) The trial court erred in refusing to instruct the jury regarding the 10-year statutory immunity and that the error was prejudicial. (2) The fraud claim was not preempted. (3) Substantial evidence supports the jury’s finding reasonable reliance. (4) The negligent design verdict is not supported by substantial evidence that the negligent design of cigarettes was a substantial factor contributing to Whiteley’s risk of developing lung cancer. (5) It is unnecessary to address the punitive damages issue at this time. We shall reverse the judgment and remand to the trial court for a new trial on the fraud-related causes of action and for entry of judgment in favor of defendants on the negligent design cause of action.

Facts and Procedural Background

A. Facts

Viewed in the light most favorable to the judgment, the evidence shows that Leslie Whiteley, who was bom in 1959, smoked her first cigarette with a friend in 1972 at age 13. She was influenced to start smoking by peer pressure, a desire to fit in and to look cool, as well as by candy and gum cigarettes and advertisements on TV. It was a “rite of passage” and she “had seen adults smoking” and “was curio[us] to try to see what it was like.” “[Pjeer pressure” was also a factor. “Not just one reason” influenced her to start smoking cigarettes. She recalled cigarette advertisements on TV during her childhood, particularly the Winston song on the Flintstones cartoon series and the “rugged Marlboro Man,” and billboards where “everybody looked healthy, white teeth, suntans, having fun.” She recalled seeing advertisements for cigarette brands while watching TV during her junior high school years.

As a teenager growing up, Whiteley did not believe that cigarettes could cause serious disease, death or cancer. Her parents never told her that smoking could cause cancer, death or any health risk. Her parents testified they did not know or believe that smoking caused cancer. The only teacher who ever suggested Whiteley should quit smoking was her junior high gym teacher who warned her that smoking would slow her down in running track and field. When the high school dean caught Whiteley smoking in the bathroom, she was suspended for breaking the rules, but the dean did not tell her she should not smoke because of health consequences. The dean testified she was not “aware” at that time that smoking caused cancer.

Whiteley did not recall actually seeing a cigarette package warning until she became pregnant in 1988. At that time, she thought that if smoking actually caused lower than normal birth weight, then, “Thank God I smoked.” As a teenager, had she read the warning that “smoking is dangerous,” she would not have interpreted that to mean that smoking could cause serious disease. As a 13-year-old, she would not have known what “dangerous” meant in that context: “Will it blow up? Will it bum me?” She wouldn’t “know it meant death or illness or disease.” As an adult, she heard that the tobacco companies were saying the government made them put the warning labels on cigarettes. She believed the tobacco companies’ denials that smoking cigarettes caused cancer and “thought that the government was just sticking their nose into business it didn’t belong in.” She believed the tobacco companies had said that it was safe to smoke. Although she could not say when she heard this information, she believed the source of this information “must have been a media or—or TV, or I read it somewhere.” She believed the tobacco companies, because they manufactured the cigarettes. “[T]hey made them so they knew what they did to people or didn’t do to people, so I believed them.” The worst she thought cigarettes could do in adults was to cause a “bad cough,” because she had seen her grandmother coughing in the morning. She learned that cigarettes could cause something more serious than low birth weight or a cough in an older person “[t]he day the doctor told me I had lung cancer.”

When Whiteley began smoking, she smoked from “five” cigarettes to “half a pack” per day. She liked Marlboro cigarettes (a Philip Morris product) because it seemed that “[a]ll teenagers smoked Marlboros.” In high school, Whiteley smoked “[a]bout half a pack a day.” She switched between Marlboro cigarettes and Camels (an R.J. Reynolds product). In high school, she never thought that she would be a smoker for all of her life. At age 15, she tried to quit for the first time because she did not have money to buy cigarettes, but it did not last.

As an adult, Whiteley began smoking her first cigarette each day as soon as she woke up. She smoked all day long and had to leave nonsmoking places like a church or movie theatre to have a cigarette. She smoked when she was sick with a cold or the flu and even smoked during her pregnancies, including on the way to the hospital. She made at least one serious effort to quit in 1989, when she and Leonard tried to quit together during a camping trip to Yosemite. They tried because they were having children. It was “sheer hell.” Whiteley went through “really bad withdrawals,” experienced “extreme dizziness,” could not “think” or “concentrate,” was “very irritated and agitated,” and “craved cigarettes very badly.” She and Leonard “fought and bickered” until they went back to smoking. According to plaintiff’s expert Neal Benowitz, who analyzed Whiteley’s smoking history and behavior under the “Fagerstrom Dependence Questionnaire,” Whiteley was “highly addicted.” Also opining that she had a “smoking addiction” was her pregnancy doctor, Jeffrey Randa Richardson. Her treating physician Thomas Brugman thought she “probably” was addicted.

Whiteley continued to smoke until February 1998, when she suffered an acute bronchitis episode, which her doctor told her would persist chronically if she did not stop smoking. She nevertheless tried to smoke on the way home from the doctor, but could not breathe. Whiteley first learned that smoking could cause something more serious than a cough or not running as fast, “[t]he day the doctor told me I had lung cancer,” in June 1998. Whiteley died on July 3, 2000, at the age of 40.

The jury could find that by the mid-1950’s medical authorities agreed and the tobacco industry (including these defendants) knew and admitted privately that smoking causes lung cancer. By about 1957, “all serious scientists” had “accepted” that “smoking was a cause of lung cancer,” a fact that thereafter was not “seriously questioned.”

In the early 1950’s, the studies from medical research began to leak into the popular press. Defendants and other cigarette manufacturers agreed to act together to counter mounting scientific evidence of the health risks of cigarette smoking. Defendants launched a massive public relations campaign—to discredit and distort the truth about smoking and cancer, to deny any link between smoking and serious illness, and to persuade the public that “there is no proof that cigarette smoking is a cause of lung cancer”—the underlying purpose of which was “reassurance of the public.” Defendants and the tobacco industry undertook public opinion polling to assist in crafting a public information message to “offset anti-cigarette propaganda and to give justified reassurance to the public.”

A major part of this strategy was the creation in 1954 of an independent “research institute.” The public was told that the institute would attempt to find the truth about smoking and health. The Tobacco Industry Research Committee (later renamed the Council for Tobacco Research, hereafter the TIRC or committee), financed the work of the Scientific Advisory Board, the “primary objective” of which was stated to be “to further the search for the cause or causes of cancer, particularly lung cancer, and of cardiovascular disease, and for the control of those diseases.” In truth, the TIRC was “an industry ‘shield’ ” whose real purpose was public relations, not research. The governing committee was made up of tobacco executives. The TIRC allocated only a small amount of money to actual research. Instead, it “carried” the “public relations load” to “stamp out” any “brush fires” (that is, publication of the truth) “as they arose.” Industry executives and attorneys dominated the TIRC meetings and controlled its actions. Nor was the Scientific Advisory Board independent, as claimed by the TIRC. Defendants and other tobacco companies packed the board with industry-friendly scientists, requiring that members have no “opinion” that the studies linking smoking and lung cancer were valid. Consequently, some board doctors publicly claimed no “relation between smoking and lung cancer” and that it was “ ‘silly’ to relate emphysema to cigarette smoking.” Nevertheless, defendants publicly claimed the board had “complete scientific freedom.” In truth, the TIRC was a public relations “front,” which tried to prove that smoking did not cause disease. Defendants used the research vehicle to establish expert scientific witnesses, to testify on behalf of the industry, as a source of information for legal guidance, and as an industry research tool for attacking the smoking and health question. The TIRC attacked legitimate research with studies asserting the statistical research connecting lung cancer and smoking had been done “incorrectly.”

As part of this campaign, in January 1954, tobacco company chief executive officers signed a “Frank Statement to Cigarette Smokers,” falsely proclaiming that smoking was “not injurious to health” and that there was “no proof’ that smoking was one of the causes of lung cancer. The “Frank Statement” was not truthful. Defendants also made false research promises, claiming their “paramount” concern was “people’s health” and that they would cooperate closely with public health officials to aid the research effort into all phases of tobacco and health. They also promised to study the issue and get back to the American people as to whether it was true that cigarette smoking caused lung cancer.

Despite their repeated promises throughout the next 50 years, that they would conduct research and would publicize the “facts” and the “truth,” defendants never intended to research all aspects of smoking to find the truth. They were reticent to do medical research or biological research and testing, doing just enough research to seem legitimate. For decades, defendants avoided research in order to deny knowledge that smoking causes cancer, in hopes of avoiding legal liability. This avoidance of research allowed them to publicly proclaim in 1967 that “[n]o biological mechanism has been demonstrated that would explain how smoking leads to any disease which has been reported as statistically associated with it.” In 1969, Philip Morris admitted that its research and development department had not been “differentiated from the public relations activities.” (Italics added.) Defendants used their research departments for “defensive” public relations to counter the Surgeon General’s report on smoking and health, and other true reports by “providing] some answers which will give smokers a psychological crutch and a self-rationale to continue smoking.”

Defendants also concealed their knowledge about smoking and cancer to avoid liability. They destroyed incriminating documents, including reports containing adverse data. Defense counsel admitted at trial that this intentional document destruction was “bad,” “troublesome,” and “wrong-headed.” Defendants also hid sensitive research on cancer and addiction at industry-friendly labs or in other countries outside subpoena range of the United States. Contrary to defendants’ public claims that they would fully disclose all information, not simply that which supported the tobacco industry’s point of view, defendants did not publish adverse results. When they did publish information, they “of course” omitted adverse results. Defendants terminated research that threatened the industry, confiscating or destroying records of adverse data.

In 1958, defendants created the Tobacco Institute, a public relations group that issued false press releases and published “Tobacco and Health,” a bogus report that looked like a newspaper with defendants’ false denials under headlines like “Smoking Link Disputed.” With each issue, the Tobacco Institute used a “news release” to attract press attention so that the “major wire services usually carrie[d] stories.” Doctors, dentists, medical schools and pharmacists were all targeted to receive these publications. In 1970, the Tobacco Institute sent a letter with false health claims to doctors. Other strategies included manipulating the mass media to suppress or make light of adverse studies or reports.

The defendants’ disinformation campaign was a deliberate “holding strategy” or “delaying action” to keep the public smoking without fear. In 1972, the year in which 13-year-old Whiteley smoked her first cigarette, the Tobacco Institute admitted that for “nearly twenty years this industry has employed a single strategy to defend itself on major fronts—politics and public opinion.” That strategy “has always been a holding strategy, consisting of HD—creating doubt about the health charge without actually denying it [ID—advocating the public’s right to smoke without actually urging them to take up the practice [cf[]—encouraging objective scientific research as the only way to resolve the question of health hazard.” The industry plan was never to “win the health war,” but to wage a “delaying action.”

The jury could also find that defendants engaged in saturation advertising targeting adolescents, the age group from which new smokers must come. Philip Morris long “rel[ied] on a rapidly increasing pool of teenagers from which to replace smokers lost through normal attrition.” RJ. Reynolds recognized that “teenagers” were “a supply of new smokers to replace the old.” Defendants knew that persons who did not begin smoking before age 18 were unlikely to do so. Defendants researched how to win young smokers and, in marketing their cigarettes, they exploited their findings about the psychosocial motivations leading teenagers to smoke, including: the desire to “be grown-up” and “signif[y] adulthood,” to “enhance [one’s] image” and “look older,” for “peer group acceptance,” to act “tough” and “adventurous,” to “show [one’s] independence” and “revolt against authority” by declaring, “I am no longer my mother’s child.” They used images of smokers calculated to induce minors to smoke. Both defendants aimed advertising and promotions directly at young people. The jury could find these targeted teenage consumers possessed less critical judgment and were generally more receptive to marketing manipulation than adults. Moreover, the jury could also find that teenagers who went past the experimentation phase quickly became addicted to tobacco and found it extremely difficult to stop smoking, having suffered impaired judgment about the consequences of continuing to smoke.

Nor did defendants engage in a real attempt to produce safer cigarettes, despite their claims to the contrary. In part, this was due to their own efforts to stay ignorant of the “biological” effects of smoking in order to avoid liability. Plaintiff produced evidence that defendants intentionally failed to employ feasible measures to remove carcinogens from cigarette smoke. They failed to do essential “whole product” testing of cigarettes, which would have tested the synergy of components. They never tested to determine whether reducing tar in cigarettes actually reduced the exposure to carcinogens. Defendants shut down projects showing that safer cigarettes were feasible. They resisted developing “acceptable low-nicotine products” because it would “make it easier for dedicated smokers to quit.”

Plaintiff introduced evidence that nicotine is an “extremely addictive” drug that “keeps smokers smoking.” The “nicotine effect” “reinforce[es] the smoking act” and “makes smokers continue to smoke.” Many smokers have “great difficulty quitting.” Nicotine addiction is the norm: “most daily smokers are addicted to nicotine.” Defendants knew that nicotine was addictive, but concealed this knowledge from the public and falsely claimed up until the late 1990’s that smoking was not addictive, but merely “habituating.” Even at trial, defendants denied that they sold nicotine, but argued they sold “taste” even though they had previously admitted that a cigarette’s “taste” is really just the nicotine effect. Defendants concealed their knowledge about nicotine’s severely addictive nature and hid or shelved nicotine research.

Knowing that without addiction they would be “out of business,” defendants manipulated nicotine levels to keep the nicotine delivery level “as high as possible.” Defendants systematically manipulated nicotine levels in their products so that every cigarette in a package has about the same level of nicotine. They did so by controlling nicotine content and its impact. One main method of controlling nicotine’s impact on the smoker is to change the pH balance of smoke through adding ammonia, which extracts the nicotine from tobacco and increases the amount of nicotine that is set free and therefore enters the bloodstream more rapidly. Philip Morris has “ammoniated” tobacco in its Marlboro cigarettes since 1965, and RJ. Reynolds has ammoniated tobacco in its Camel cigarettes since about 1975. Although the nicotine levels overall were reduced from 1950’s levels, the pH manipulation nullified that reduction, delivering essentially the same amount of “free” nicotine and keeping cigarettes fully addictive. All the while, defendants falsely denied they controlled nicotine at all, again telling the public to “rest assured.” RJ. Reynolds stated that the accusations of spiking nicotine levels was “sheer nonsense,” while Philip Morris asserted that it did not “manipulate” or “control” the level of nicotine in their cigarettes.

In response to the “cancer scare,” defendants suggested to the public that “low tar” cigarettes were “healthier,” inviting smokers to “[ijnhale to your heart’s content!” They “more or less” claimed that these filter cigarettes had a “high-tech filter that would filter out any of the bad substances.” But defendants knew that filter cigarettes had similar “carcinogenicity” to unfiltered cigarettes and were “no less tumorigenic.” Moreover, they knew that a smoker who switches to a high filtration cigarette that delivers less nicotine often winds up smoking more to compensate.

In 1966, Congress required that cigarette packages bear a relatively mild warning that smoking “may be hazardous to your health.” In 1969, Congress required a more strongly worded warning and required that it appear in advertising as well as on packages. At that time, Congress explicitly preempted any state law imposing a “requirement or prohibition with respect to advertising or promotion” of cigarettes—language that has been construed by the Supreme Court to preempt many, but not all, common law tort claims. (See pt. II, post.) Since 1972, the “Surgeon General’s warning” has been “displayed in all cigarette advertising.” From 1985, Congress has required cigarette packages to be labeled with one of four “rotating warnings,” each explicitly labeled a “Surgeon General’s warning . . . .” These warnings advised: “Smoking causes lung cancer, heart disease and emphysema”; “Quitting smoking now greatly reduces serious risks to your health”; “Smoking by pregnant women may result in fetal injury, premature birth and low birth weight”; and “Cigarette smoke contains carbon monoxide.”

Defendants continued to assure the public that they disagreed with these warnings, by denying it had been proved that smoking was “hazardous” or “dangerous” or caused disease, and by publicly disavowing the warnings. In 1969, Joseph F. Cullman, Chairman of the Board of Philip Morris, claimed publicly that defendants were “forced to label their products as possible hazards to health” and that the industry did not accept that cigarettes were “hazardous.” The Tobacco Institute, around 1980, claimed the “warning label” merely showed “how certain government officials feel about cigarette smoking.”

Defendants knew they could keep people like Whiteley smoking by creating a false “controversy” about the health effects of smoking. As public health specialist Benowitz explained, the industry made statements that there was a controversy about the risks of smoking and whether or not nicotine was addictive, when in fact there was no medical or scientific controversy. Benowitz opined that the tobacco industry’s statements disputing causation and addiction “have undermined the public health message to the result that people are in more doubt about whether the public health message is correct, and are less likely to take it seriously.”

In 1988, the tobacco industry acquired a safe harbor under California law when tobacco was listed among “common consumer products” in former section 1714.45, a statute construed the following year to create an almost complete “immunity” from tort liability. (See Myers, supra, 28 Cal.4th at pp. 833-836.) The Legislature repealed that protection effective January 1, 1998. (See pt. I, post.)

B. Procedural background

On April 30, 1999, Leslie and Leonard Whiteley filed suit in San Francisco County Superior Court against defendants Philip Morris Inc. and R.J. Reynolds Tobacco Company, as well as against numerous asbestos companies. By the time of trial, all asbestos company defendants except Metalclad Insulation had been dismissed. Metalclad Insulation prevailed at trial.

Plaintiff’s case went to the jury against the tobacco defendants on the following claims: (1) fraud by intentional misrepresentation; (2) fraud by concealment prior to July 1, 1969; (3) fraud by false promise; (4) fraud by negligent misrepresentation; (5) conspiracy to misrepresent facts both before and after July 1, 1969; (6) conspiracy to conceal facts prior to July 1, 1969; (7) negligent failure to warn before July 1, 1969; and (8) negligent design.

The jury began deliberations on the afternoon of Thursday, March 9, 2000. It reached a verdict on Monday, March 20, 2000, after seven days of deliberation. It returned special verdicts in favor of Whiteley on the causes of action for fraud by intentional misrepresentation, fraud by false promise, fraud by negligent misrepresentation, and negligent design. The jury found in favor of defendants on the remaining causes of action. With respect to the cause of action for fraud by concealment prior to July 1, 1969, it found that although defendants concealed or suppressed a material fact, defendants did not conceal or suppress the fact with the intent to defraud Whiteley. As to the two conspiracy causes of action, it found that Whiteley had not relied upon the concealment or misrepresentation, as she would have acted as she did had she known the concealed or misrepresented fact. As to the negligent failure to warn prior to July 1, 1969, it found that such failure was not a cause of injury and damage to Whiteley. The jury also found as to the fraud by intentional misrepresentation, fraud by false promise, and fraud by negligent misrepresentation counts that defendants were guilty of malice, fraud or oppression. It did not so find with respect to the negligent design count.

The jury awarded total compensatory damages of $1,722,200 against both defendants, apportioned equally between the two.

Following three days of testimony in the subsequent punitive damages phase of the trial, the jury awarded $20 million punitive damages ($10 million against each defendant).

On March 31, 2000, the trial court entered judgment on the special verdicts in the total amount of $1,689,117 “net” compensatory damages, plus $20 million punitive damages.

On May 24, 2000, the trial court denied defendants’ motions for judgment notwithstanding the verdict and for new trial, and denied their alternative request to remit the punitive damages award. On May 30, 2000, defendants filed a timely notice of appeal from the judgment and the order denying their various posttrial motions. On July 3, 2000, Leslie Whiteley died.

I. The Immunity Statute and Instructional error

A. Instructional error

Defendants contend that the trial court prejudicially erred in refusing to instruct the jury that it could not base liability upon any conduct by defendants occurring within the 10-year period during which former section 1714.45 (the Immunity Statute) provided complete immunity.

As originally enacted, the Immunity Statute, effective January 1, 1988, granted tobacco companies “complete immunity in certain product liability lawsuits . . . .” (Myers, supra, 28 Cal.4th at pp. 831-832.) “[Bjetween January 1, 1988 and December 31, 1997, when the Immunity Statute was in effect, supplying pure and unadulterated tobacco products to knowing and voluntary consumers of those products was not subject to tort liability because it breached no legal duty and thus constituted no tort.” (Id. at p. 837; see American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480, 487 [255 Cal.Rptr. 280] .) Section 1714.45 was amended, effective January 1, 1998, to delete “tobacco” from the fist of consumer items entitled to statutory immunity from product liability actions, and to state explicitly that the statute does not exempt the manufacture or sale of tobacco products by tobacco manufacturers from product liability actions.

In Myers and Naegele, the Supreme Court discussed the effect of the repeal of the immunity on the liability of tobacco manufacturers before, during and after the 10-year period the immunity was in effect. (Myers, supra, 28 Cal.4th at p. 832; Naegele, supra, 28 Cal.4th at p. 860.) In Myers, the court held: “The Immunity Statute applies to certain statutorily described conduct of tobacco companies that occurred during the 10-year immunity period, which began on January 1, 1988, and ended on December 31, 1997. With respect to such conduct, therefore, the statutory immunity applies, and no product liability cause of action may be based on that conduct, regardless of when the users of the tobacco products may have sustained or discovered injuries as a result of that conduct. That statutory immunity was rescinded, however, when the California Legislature enacted the Repeal Statute, which as of January 1, 1998, restored the general principles of tort law that had, until the 1988 enactment of the Immunity Statute, governed tort liability against tobacco companies. Therefore, with respect to conduct falling outside the 10-year immunity period, the tobacco companies are not shielded from product Lability lawsuits.” (Myers, at p. 832.)

In Naegele, the court considered “what forms of conduct by tobacco companies during the 10-year immunity period come within the protection conferred by the Immunity Statute.” (Naegele, supra, 28 Cal.4th at p. 860.) The court concluded that the Immunity Statute’s broad definition of product liability lawsuits barred actions for fraud, as well as for negligence and manufacture of an inherently unsafe product, provided the lawsuit is seeking damages for personal injury or death caused by the use of “pure and unadulterated” tobacco products. (Id. at pp 863-864.) Therefore, the allegation that tobacco companies, during this period, controlled or increased the nicotine content of their cigarettes through blended or high-nicotine tobacco does not avoid the bar of the Immunity Statute “because it does not allege that defendants exposed plaintiff to a risk other than those inherent in tobacco products.” (Id. at p. 865.) However, product liability lawsuits based upon allegations that the tobacco companies manipulated the addictive properties of cigarettes through additives, such as “ ‘controlling] nicotine delivery to the smoker through adding ammonia’ ” (id. at p. 865), are not barred during the immunity period. “The essence of these allegations is that defendant tobacco companies adulterated the cigarettes plaintiff smoked with additives that exposed him to dangers not inherent in cigarette smoking. Because, as we have explained, the statutory immunity does not shield a tobacco company from liability for injuries or deaths caused by something not inherent in the product itself, the Immunity Statute does not bar these claims.” (Ibid.)

In summary, Naegele concluded: “As we hold in the companion case of Myers, supra, 28 Cal.4th 828, the Immunity Statute governs conduct of tobacco companies during the immunity period, which began on January 1, 1988, and ended on December 31, 1997. But when, on January 1, 1998, the California Legislature’s repeal of that immunity took effect, the Legislature restored the common law principles that had, until enactment of the Immunity Statute, governed tort liability against tobacco companies. Thus, the Immunity Statute provides no protection to tobacco companies for conduct that occurred before the statute’s 10-year period of immunity, [f] Regarding defendants’ conduct during the statutory immunity period, we conclude that the Immunity Statute bars plaintiff’s claims, however labeled, where they allege no more than personal injury caused by dangers or risks inherent in the consumption of tobacco products such as cigarettes. But the Immunity Statute does not bar plaintiff’s claims that the defendants adulterated the cigarettes plaintiff smoked with additives that exposed him to dangers not inherent in cigarette smoking. Nor does the Immunity Statute shield tobacco companies from liability for conduct outside the immunity period.” (Naegele, supra, 28 Cal.4th at p. 867.)

The trial here predated the Supreme Court’s Myers and Naegele opinions. Throughout the trial, defendants maintained that they were completely immune from tort liability by virtue of the former Immunity Statute, and at various times requested the court grant them summary judgment, judgment notwithstanding the verdict and a new trial on that basis. Although primarily contending they were immune for conduct occurring before 1988, as well as during the 10 years the statute was in effect, defendants also argued in the alternative that “at a minimum [the court] must exclude all evidence of allegedly tortious conduct occurring between January 1, 1988 and December 31, 1997 (the period during which the original version of the statute was in effect). . . .” The court rejected these arguments. Defendants alternatively requested that the court instruct the jury in accordance with section 1714.45 that “[y]ou may not find [defendants] liable on plaintiff’s claims of design defect, negligence, or fraud and conspiracy based on anything that either defendant did or did not do between January 1, 1988 and December 31, 1997. . . .” (Defendants’ Proposed Instruction No. 76) The trial court refused to so instruct.

In their motion for new trial, defendants argued the trial court should grant them a new trial on the fraud and punitive damages claims because they could not constitutionally be held hable for conduct which was nontortious when undertaken. Therefore, they asserted, “the jury could not permissibly hold Defendants hable for fraud or impose punitive damages based in whole or in part on evidence of their alleged conduct during this period.” Defendants asserted that the court’s refusal to instruct the jury that it must disregard ah evidence of defendants’ conduct during the 1988 to 1998 statutory immunity period was prejudicial error. The court denied the motion for new trial.

Following Myers and Naegele, it is clear that the trial court erred in refusing to instruct the jury that it could not hold defendants liable for fraud or negligence based upon their conduct during the 10-year period covered by the hnmunity Statute, with one narrow exception for any injury caused by the adulteration of the product with additives.

Plaintiff counters that the court was not required to give the instruction proposed by defendants, as that instruction was too broad, did not advise the jury of the exception for ammonia adulteration, and was argumentative. Plaintiff rehes upon the well-known rule that: “ ‘A trial court has no duty to modify or edit an instruction offered by either side in a civil case’ and ‘[i]f the instruction is incomplete or erroneous the trial judge may . . . properly refuse it.’ (Truman v. Thomas (1980) 27 Cal.3d 285, 301 [165 Cal.Rptr. 308, 611 P.2d 902] (dis. opn. of Clark, J.) and cases cited.)” (Vahey v. Sacia (1981) 126 Cal.App.3d 171, 178 [178 Cal.Rptr. 559].)

“But this rule is subject to the qualification that it may be reversible error to refuse an instruction which is substantially correct and is unlikely to have misled the jury. (See [Truman v. Thomas, supra, 27 Cal.3d.] at p. 294 . . . ; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 819 [26 Cal.Rptr. 633, 376 P.2d 561] . . . ; Tobler v. Chapman (1973) 31 Cal.App.3d 568, 586 [107 Cal.Rptr. 614] . . . .)” (Vahey v. Sacia, supra, 126 Cal.App.3d at p. 178.)

Moreover, there is no indication here that the trial court rejected the instruction because it was argumentative or incomplete. If it had done so, such defects could easily have been rectified. (See Vahey v. Sacia, supra, 126 Cal.App.3d at p. 178.) Rather, the court apparently rejected the instruction in toto because it had concluded that the former statutory immunity had been completely and retroactively repealed. Consequently, it “appears that it would have been futile to amend the instructions and the principle expressed in Davis [v. Memorial Hospital, supra, 58 Cal.2d 815 [26 Cal.Rptr. 633, 376 P.2d 561] should apply. [][] It is therefore necessary to consider whether the failure to instruct . . . was prejudicial.” (Tobler v. Chapman, supra, 31 Cal.App.3d at p. 586.)

B. Prejudice

“With respect to our review of issues relating to [the failure to give requested jury instructions], as well as the question of their prejudicial impact, we do not view the evidence in the light most favorable to the successful [party] and draw all inferences in favor of the judgment. Rather, we must assume that the jury, had it been given proper instructions, might have drawn different inferences more favorable to the losing [party] and rendered a verdict in [that party’s] favor on those issues as to which it was misdirected. [Citations.]” (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156 [84 Cal.Rptr.2d 257].)

Consequently, in determining whether the court erred in refusing to instruct the jury that it could not base a finding of tort liability upon defendants’ conduct from 1988 to 1998, during the statutory immunity period, we view the evidence in the light most favorable to defendants. (Henderson v. Hamischfeger Corp. (1974) 12 Cal.3d 663, 674 [117 Cal.Rptr. 1, 527 P.2d 353] [jury assumed to believe evidence on which proffered instructions are predicated]; Freeze v. Lost Isle Partners (2001) 96 Cal.App.4th 45, 53 [116 Cal.Rptr.2d 520]; National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 419 [72 Cal. Rptr. 2d 720]; cf. Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943 [54 Cal.Rptr.2d 209]; Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1607 [28 Cal.Rptr.2d 62].)

“That is not to say, however, that a failure properly to instruct a jury is necessarily or inherently prejudicial.” (Logacz v. Limansky, supra, 71 Cal.App.4th at p. 1156.) The Supreme Court has considered and rejected the theory that an instructional error in a civil case may be inherently prejudicial. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573-580 [34 Cal.Rptr.2d 607, 882 P.2d 298] (Soule); accord, Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983 [67 Cal.Rptr.2d 16, 941 P.2d 1203] (Rutherford)) Instead, Soule held that “[instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule, at p. 580.) “The reviewing court should consider not only the nature of the error, ‘including its natural and probable effect on a party’s ability to place his full case before the jury,’ but the likelihood of actual prejudice as reflected in the individual trial record, taking into account ‘(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.’ ([Soule,] at pp. 580-581.)” (Rutherford, at p. 983.) Reversal for instructional error is warranted only where the reviewing court concludes “ ‘the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule, at p. 580; accord, Rutherford, at p. 983.)

Relying upon Naegele, supra, 28 Cal.4th 856, plaintiff contends the verdicts can stand upon evidence that defendants used ammonia additives, adulterating the product to make it unreasonably dangerous. Naegele held “that the Immunity Statute’s protection . . . does not extend to allegations that tobacco companies, in the manufacture of cigarettes, used additives that exposed smokers to dangers beyond those commonly known to be associated with cigarette smoking.” (Id. at p. 861.) Naegele continued: “The trial court was wrong that the Immunity Statute required it to sustain defendant tobacco companies’ demurrer to two causes of action alleged in plaintiff’s first amended complaint. In one of these, plaintiff alleges that defendants ‘manipulat[ed] the addictive properties of cigarettes via . . . additives,’ and in the other he asserts that defendants ‘controlled] nicotine delivery to the smoker, through adding ammonia.’ The essence of these allegations is that defendant tobacco companies adulterated the cigarettes plaintiff smoked with additives that exposed him to dangers not inherent in cigarette smoking. Because, as we have explained, the statutory immunity does not shield a tobacco company from liability for injuries or deaths caused by something not inherent in the product itself, the Immunity Statute does not bar these claims.” (Id. at p. 865.) At the same time, citing our opinion in American Tobacco Co. v. Superior Court, supra, 208 Cal.App.3d at page 490, footnote 5, the Supreme Court recognized that allegations that “defendants ‘controlled] the nicotine content of their cigarettes ... by developing high-nicotine tobacco and blended tobacco’ ” did not survive the statutory immunity. “Because nicotine is naturally present in tobacco, the risks associated with nicotine are inherent in tobacco products. Therefore, an allegation that defendants increased the nicotine content of their cigarettes through blended or high-nicotine tobacco does not avoid the bar of the Immunity Statute because it does not allege that defendants exposed plaintiff to a risk other than those inherent in tobacco products.” (Naegele, at p. 865.)

Unlike Naegele, which was an appeal from the sustaining of a demurrer, here there was no separate cause of action based upon ammonia adulteration. The complaint did contain factual allegations that defendants added ammonia to increase nicotine addiction and cigarette dependency. However, such allegations were contained among numerous others in the negligence and civil conspiracy causes of action. At trial, plaintiff presented evidence of nicotine manipulation through the addition of ammonia and other additives to cigarettes, but such evidence was part and parcel of their fraud and negligence causes of action and there is simply no way to determine whether or to what degree the jury relied upon such evidence in reaching its verdicts.

Plaintiff also contends any error was harmless, as the judgment rests upon defendants’ pre-1988 misconduct and that the “scant” evidence of defendants’ misconduct after 1988 and within the statutory immunity period was “insignificant.” Plaintiff points out that the number of post-1988 exhibits is small (62), compared to the total number of exhibits introduced by him (977), and that only two post-1988 documents were referred to during closing argument, compared with 43 other pre-1988 documents. Such calculation does not answer the question of prejudice, however, which we assess using the factors set forth in Soule, supra, 8 Cal.4th at pages 580-581, as a guide.

1. State of the evidence. Although it is not clear that any relevant evidence was excluded because of the instruction and defendants did argue that the evidence did not show wrongdoing in the 1990’s, nevertheless we believe the nature of the instructional error here was likely to have impaired defendants’ ability to put its full case before the jury. Defendants were unable to argue that the jury could not consider their conduct during the immunity period in determining their liability for negligent product design or fraud. Defendants were unable to build into their case or argument the reality that they were shielded from liability for 10 years, or 40 percent of the period during which Whiteley smoked. During the liability phase and most clearly during the punitive damages phase, plaintiff argued that defendants had engaged in a continuous course of tortious conduct spanning the decades before Whiteley’s birth and continuing even at the time of trial. Such conduct became more egregious over time as more became known about the hazards of smoking.

Although not voluminous, significant evidence relating to defendants’ wrongdoing during the immunity period bolstered plaintiff’s argument that the tobacco companies continued, up to the date of trial, to misrepresent the hazards of smoking and to dispute causation and the risks of addiction so as to undermine public health messages about smoking. This evidence also constituted powerful support for the punitive damages claim.

Evidence of wrongdoing during the immunity period included the following:

Benowitz testified, based upon his experience and the 1989 Surgeon General’s report, as to the effect the tobacco industry’s statements disputing causation and addiction have had on public awareness. Benowitz opined that “the industry statements have undermined the public health message to the result that people are more in doubt about whether the public health message is correct, and are less likely to take it seriously.” He affirmed his belief that “that exists at the present time as well.”

The immunity period also featured in plaintiff’s causation claim. On cross-examination by defendants, plaintiff’s expert Dr. David Bums testified that the risk from smoking declines after a smoker ceases smoking and that had Whiteley ceased smoking in 1985, 13 years before she was diagnosed with lung cancer in 1998, her risk of developing lung cancer would have been less than 50 percent. Plaintiff’s experts did not testify that Whiteley’s disease resulted solely from pre-1988 smoking. They expressly considered her immunity-period smoking in opining upon disease causation, conceding that if she had stopped smoking in 1985, she likely would not have contracted lung cancer. This testimony focused a spotlight on defendants’ conduct during the immunity period, wherein defendants continued to speak and act in ways that undermined the public health message that smoking caused cancer and refused to design a “safer” cigarette.

Plaintiff’s also examined William Farone, Ph.D., director of applied research at Philip Morris from 1977 to 1984, who testified in support of plaintiff’s negligent design claim that it would have been possible to make a “safer” cigarette by reducing or removing nitrosamines, one of the most carcinogenic substances produced from cigarettes, but that defendants refused to do so.

Plaintiff introduced a document found on the Philip Morris Web site (exhibit No. 1613) to support Farone’s methodology in looking at the nicotine-to-tar ratios and his theory that ammonia can be used and was used to manipulate the nicotine-to-tar ratio of cigarettes. Farone testified extensively on other existing, feasible technology and designs that could make cigarettes safer through modifications such as other types of filters and ventilation systems.

Other evidence from the immunity period relating to the negligent design claim included evidence of defendants’ failure to design safer cigarettes and involved introduction of evidence of the reduced tar design project (exhibit No. 1078 from 1988); product development consideration of lower tar cigarette design with nicotine removed and added back in; product design including use of higher nicotine tobacco (exhibit No. 758 from 1990); and a submission regarding the Federal Trade Commission method for determining tar, nicotine, and carbon monoxide levels in cigarettes (exhibit Nos. 1095 from 1991, and 759 from 1994 and 1996). Also related to the negligent design claim was evidence purporting to show that defendants knew that light cigarettes were not safer (memoranda regarding smoker compensation for lower tar in cigarettes— from 1989 and 1990 (exhibit Nos. 1085 and 1093), and memoranda regarding alternative cigarette designs in 1988 and 1994 (exhibit Nos. 167 and 240)).

Farone testified that defendants refused to research whether light cigarettes were safer as there was no “whole product” testing performed in the United States; that he was unaware of a carbon filter ever being tried on Marlboro cigarettes, and that other technologies could have been used to improve safety. Also presented was testimony by Benowitz that tests on light and ultralight cigarettes available in the late 1980’s or early 1990’s were only for taste and did not analyze whether differences other than taste were present.

As evidence of defendants’ misrepresentations, plaintiff introduced into evidence a 1992 Philip Morris document, “Tobacco Issues and Answers” (exhibit No. 608), that acknowledged that “smoking is a risk factor for certain human diseases,” but argued that causation had not been proved; that secondhand smoke did not cause disease; and that smoking was not addictive. Other evidence introduced by plaintiff included alleged false statements by defendants through press releases issued by the Tobacco Institute in 1988 and 1994 reasserting that the claim that smoking is addictive was unwarranted (exhibit Nos. 386 and 387); that cigarette manufacturers did not manipulate the level of nicotine in cigarettes; and that it was irresponsible to suggest that nicotine is addictive (exhibit No. 387). Also introduced as evidence of false statements was a 1988 letter from RJ. Reynolds stating that “scientists do not know the cause or causes of the chronic diseases reported to be associated with smoking,” and referring to the “many unanswered controversies surrounding smoking” (exhibit No. 1109). Plaintiff introduced a 1994 RJ. Reynolds advertisement asserting “we do not increase the level of nicotine in any of our products in order to ‘addict’ smokers” (exhibit No. 593).

Plaintiff introduced evidence of conduct during the immunity period relating to defendants’ alleged nicotine manipulation, including: three 1988 R.J Reynolds documents (exhibit Nos. 1110, 744 and 1079); a 1989 Philip Morris document (exhibit No. 168); two 1990 RJ. Reynolds documents (exhibit Nos. 1103 and 758); a 1990 Philip Morris memorandum referring to Philip Morris studies in 1989 and June 1990 (exhibit No. 171); three 1991 RJ. Reynolds documents (exhibit Nos. 1086, 1095 and 1106); a 1992 Philip Morris memorandum discussing 1991 research (exhibit Nos. 175); a 1992 Philip Morris memorandum (exhibit No. 178); and a 1994 Philip Morris document (exhibit No. 184).

In addition to evidence relating to the nicotine manipulation allegations, plaintiff introduced other evidence of defendants’ conduct during the immunity period intended to support plaintiff’s contention that defendants concealed their knowledge of the physiological effects of nicotine. (See exhibit Nos. 509 [1993 aerosol studies proposal], 174 [1992 sensory technology report], 1100 [1991 Reestablishment of Solubles in Tobacco (REST) program review on controlling nicotine], 1061 [1989 optimal nicotine delivery].)

Plaintiff argued that defendants targeted youth in their advertising and introduced as supporting evidence two 1988 RJ. Reynolds documents (exhibit Nos. 1487, 1488), two 1990 R.J. Reynolds documents (exhibit Nos. 1992 and 641), a 1991 Philip Morris document (exhibit No. 244), and a 1992 report commissioned by Philip Morris (exhibit No. 208).

Plaintiff also introduced evidence of defendants’ spending on advertising during the immunity period, in an attempt to link these advertising expenditures to the claims that defendants targeted youth in their advertisements, introducing into evidence a list showing defendants spent more on advertising in 1992 than most major American companies (exhibit No. 625) and eliciting testimony that in 1995 the tobacco industry as a whole spent $800 to $900 million on advertising and $3.9 billion on other promotional activities.

2. Other instructions. No other instruction lessened the prejudice of the court’s instructional error. There were no other instructions informing the jury that it could not base liability for fraud or negligence upon defendants’ conduct during the immunity period and no instruction that punitive damages could not be based upon defendants’ conduct during this period.

3. Counsel’s arguments. Counsel’s closing arguments during the liability phase and most powerfully during the punitive damages phase of trial highlighted the prejudicial effect of the failure to properly instruct the jury as to the impact of the Immunity Statute upon defendants’ liability during the 10-year immunity period. Excerpts from those closing arguments demonstrate that plaintiff’s counsel was able to forcefully argue a continuous course of conduct by defendants from a time before Whiteley began smoking, throughout her entire life as a smoker (and including the 1988-1998 immunity period) during which defendants misled the public (and Leslie Whiteley), undermined the effectiveness of public health messages, and refused to design a safer cigarette.

Plaintiff’s counsel argued that defendants’ false denial of the link between smoking and lung cancer and their conduct in manufacturing a “controversy” about the medical evidence continued uninterrupted throughout the past 50 years.

“So what are all these other causes? [Defense witness] Dr. Wecker had ideas. It was not eating leafy vegetables. I can’t remember. Radon causes it. Compared to smoking, it’s a drop in the ocean. But that’s not where it is. [f] So they come to you with a story that lots of things cause it, and they try to link it, ... to a virus, to air pollution, which does cause it, I suppose, or at least might contribute, or to TB, tuberculosis. They’re being extraordinarily misleading. [ID • • • fiD Over the entire 50 years, there has been a common theme, that everything causes it but cigarette smoke. TB, air pollution, radon, leafy vegetables, asbestos, genetics; it all causes it, but not smoking. [f] And maybe you’re hearing something that sounds familiar, because that’s what they have done in this case too. Everything caused it but the smoking, [f] [Exhibit No.] 456 is the one I referred to. That’s 1984—1983, they attacked the idea that it’s addictive, [f] And it goes on and on. And the attempt was very clear. The intent was to persuade people what they were hearing was not true, that . . . lung cancer was not caused by smoking. [ID And in general, it worked. It worked for many, many people, and it worked with Leslie Whiteley.” (Italics added.)

“And we’re here now in 2000. . . . [H]ere we are, how many years later? And the same questions are being asked. The same issue is being raised, [f] ‘We still don’t know. We think it’s probably a risk. It’s not good for you, but we don’t really know. And we don’t know what it is in cigarettes. And if—gosh, if we only knew what it was in cigarettes, we’d take it out and then everything would be just fine.’ [f] They’re still saying that. And maybe that changed as of 1999. Philip Morris’ website, followed this year by R.J. Reynolds’ website, finally acknowledging what the medical community has said, what was established fact. [][]... [f] Why are we here in 2000, without somebody coming forward and saying—some corporate vice president, the chairman of the board, somebody saying from that witness stand, ‘Yes, we know we sell a deadly product. We know it. We admit it. We acknowledge it.’ [ID Because the website doesn’t say that either. It says: ‘Refer yourself back to the health community.’ [f] By the way, when Dr. Davis was here and Dr. Bums was here and Dr. Benowitz were here, there was an attempt to make them out to be some kind of zealots . . . . [f] No. They want to keep people from dying. They want to keep people from dying. That’s their goal. [ID So why do we have all this questioning of them and arguing over every point? It’s not addictive. It is addictive. Which definition? ‘Just admit it. You sell a deadly product. It’s addictive.’ [f] ‘We’ll make it better for some people. Well, we are not sure really if it’s better, but we’ll tell you that ultralight has less or a light has less.’ ” (Italics added.)

Counsel argued that the industry had consistently and uninterruptedly managed to maintain the half-truth that “ ‘the case is not proved’ ” and “ ‘to hold the public on [that] middle course.’ ” “And I submit to you that they have managed to do that for 50 years. And now, as we stand here in 2000, maybe that will change. But during the course of this trial, 3,000 kids began smoking every single day since this trial began.” (Italics added.)

Counsel referred the jury specifically to exhibit No. 608, the 1992 Philip Morris document on tobacco issues and answers and to exhibit No. 386, the 1988 press release from the Tobacco Institute, “Claims That Cigarettes Are Addictive Contradict Common Sense,” as well as to earlier documents and argued that the “purpose was, to reassure smokers, keep them smoking, [f]... [|] And that’s what has gone on and has been going on.”

“And it goes on, Ladies and Gentlemen, and it goes on and it goes on.”

Referring to the negligent design claim that defendants refused to make a safer cigarette, plaintiff’s counsel argued: “The cigarette people don’t recall cigarettes. They make another one. Camel makes Camel Lights and Camel 100 starting about 1977, not too long before Leslie Whiteley began to smoke Camel, and sometime in the early ‘80s. And she smoked Camels until 1998. [f] And they told you that, in those cigarettes, they didn’t make a single change from the time they were issued. And that’s what she was smoking. They knew they were extremely dangerous and they were doing all kinds of research you heard about, but they never made a single change. They failed to do a single design change despite what they knew.” (Italics added.)

During the punitive damages phase of trial, plaintiff’s counsel, during her closing rebuttal, scoffed at the idea that the tobacco companies had “turned over a new leaf’ or had changed, arguing that any changes had been forced upon the defendants by state governments and that any true change by the companies was belied by an uninterrupted 50 previous years of blameworthy conduct.

“[WJe’re talking about Philip Morris. We’re talking about RJ. Reynolds, [f] And we’re talking about them from when they began, and we’re talking about information that they now claim, ‘Oh, suddenly—oh look, we’ve come forward. We’ve put it on our website, the truth. We’ve put the truth on our website.’ [][] This truth (indicating) was known in 1954. This truth was known in 1964. This truth was known in 1974 and in ‘84. [][] And you know what it took? It took 1994, when the State of Mississippi sued them to recover medical expenses—not for punishment, not for personal injury, not for the type of lawsuit we’re here for—and force them to finally, finally, say something to the public that wasn’t an outright lie or a half-truth, [f] They made the choice. They made the choice not to do it sooner. What they did was they waited until they got caught. It took a lawsuit, just like it’s going to take a lawsuit here, to punish them, [f] When they came into the first phase of this case, did they come in and say, ‘we have some responsibility’? No. [f] . . . [f] . . . We are talking about punishment, and we’re talking about deterrence, [f] You can’t look at from 2000 on and say, ‘Well, it doesn’t matter what we did for the last 50 years.’ You can’t do that. They cannot be allowed to get away with that. []Q You send the wrong message to corporate America that it’s okay for companies to mislead, to misrepresent, and to do it as long as you want, to kill thousands of people in California, and you don’t have to change your ways until somebody catches you and makes you.”

Regarding advertisements targeting youth and billboards, plaintiff’s counsel argued that the company had done nothing to stop that targeting until 1998, when forced to do so by particular states, and that it had spent in excess of $1 billion dollars in advertising in 1999. “Now, we are not talking about the past. We are talking right now. So think about how much advertising that is. If it’s not on a billboard, think about where all of that money is going, and think about why they made that corporate choice, [f] Those are the kinds of things that you need to deter, decisions like that. Decisions to spend a minimal amount doing what somebody has forced you to do. [f] And I also asked Ms. Merlo [senior vice-president in corporate affairs for Philip Morris] whether or not Philip Morris could have voluntarily taken down billboards. Did they have that choice [at] any point in time? Of course, they did. Did they keep them up until the second they were forced to take them down? [f] And what happened? We talked about the fact that before they were forced to take them down all over the place, in all the states under the MSA settlement agreement, that the State of Mi