Boeken v. Philip Morris Inc. (127 Cal. App. 4th 1640, 2005)

Opinion

HASTINGS, J.

BACKGROUND

Richard Boeken filed this action on March 16, 2000, alleging various theories including negligence, strict product liability and fraud resulting in personal injuries caused by his cigarette addiction. The complaint alleges that Boeken began smoking in 1957, when he was a minor, that he smoked Marlboro and Marlboro Lights, both manufactured by Philip Morris USA, Inc., and that he was ultimately diagnosed with lung cancer in 1999.

The cause was tried to a jury over approximately nine weeks, beginning in March 2001. The jury found that Philip Morris products consumed by Boeken were defective either in design or by failure to warn prior to 1969, resulting in injuries to Boeken. The jury also found liability to Boeken based upon fraud by intentional misrepresentation, fraudulent concealment, false promise, and negligent misrepresentation, concluding that Boeken had justifiably relied upon fraudulent utterances and concealment by Philip Morris. Compensatory damages in the amount of $5,539,127 were awarded by the jury. It also assessed punitive damages in the sum of $3 billion dollars.

A Philip Morris motion for judgment notwithstanding the verdict was denied. Its motion for new trial was conditionally granted solely on the issue of punitive damages unless Boeken accepted a reduction in punitive damages to the sum of $100 million, in which case the motion was denied. Boeken consented to the reduction and an amended judgment was entered on September 5, 2001. Philip Morris and Boeken each filed timely notices of appeal.

We issued our first opinion on September 21, 2004, affirming the judgment but further reducing punitive damages to the amount of $50 million. Philip Morris and Boeken each filed petitions for rehearing, which we granted. We heard further argument on February 15, 2005. After reconsidering the issues raised by the parties, we again affirm the judgment and order reduction of punitive damages to $50 million, if Boeken accepts the remittitur. If he does not, we affirm the order of the trial court granting a new trial to Philip Morris on the issue of punitive damages.

EVIDENCE REGARDING SMOKING, ITS EFFECTS AND THE FALSE CONTROVERSY

Physicians had the ability in the mid-nineteenth century to diagnose lung cancer. It was a rare disease until some years after the first commercial prerolled cigarettes were introduced in the United States in 1913. In the 1930’s, there was a sharp increase in the number of cases diagnosed, and by the end of World War II, its incidence had increased 20-fold.

Boeken’s epidemiological expert, Dr. Richard Doll, joined Professor Bradford Hill at the London School of Hygiene in the late 1940’s, to conduct the first studies in the United Kingdom to determine the cause of lung cancer, and why its incidence had increased so dramatically. Statistics established a causal connection between smoking and cancer, and Doll and Hill published their results in 1950 in the British Medical Journal.

A Dutch scientist had published a paper in 1948, having reached the same results, and in 1950, a smaller American study was published in the Journal of the American Medical Association by American scientists Drs. Graham and Wynder, also reaching the same conclusion. There had been earlier studies in Germany, but they were not given much weight because the scientific methods used were not optimal.

The popular media and the United Kingdom Department of Health were not convinced by the Hill and Doll study, and so the two undertook a years-long study of 40,000 smoking and nonsmoking English doctors who did not have lung cancer. They thought it would take 5 years to complete the study. But in 1954, after two years and 35 deaths due to lung cancer, they felt the results were clear and published their findings immediately in the British Medical Journal. This study was more widely accepted than the previous studies and changed attitudes considerably.

The American Cancer Society then undertook a two-year study with 190,000 subjects, in order disprove Doll’s conclusions. In 1954, its scientists reported their belief that the conclusions reached in the British study had been correct. Even after publication of Doll’s second study and the American Cancer Society study, some leading scientists still questioned the link between lung cancer and smoking, and opinion among scientists was evenly divided until about 1956. At that time, opinion had firmed up quite definitely among scientists that smoking caused lung cancer.

Neil Benowitz, M.D., Boeken’s addiction expert, testified that nicotine is addictive, and the most effective way addiction is achieved is delivery by cigarette smoke. Withdrawal symptoms include irritability, anxiety, insomnia, trouble concentrating, nervousness, and dysphoria (mild depression), and can last for months after quitting. Some symptoms last forever. Smokers use denial and rationalization to continue doing what is obviously or apparently harming them and may acknowledge a general risk, but given a choice of conflicting opinions, they will choose the opinion that supports continued tobacco use.

In 1954, the tobacco industry embarked upon a decades-long strategy to create public doubt about the “health charge” through “vigorous” but not actual denial, such as by claiming that experimental proof was still lacking, and that the statistics were not to be trusted, because they were poorly obtained or grossly exaggerated.

First, several tobacco companies, including Philip Morris, formed the Tobacco Industry Research Committee (TIRC), a public relations organization, to counter the “anti-cigarette crusade” by providing “balancing information” regarding “unproven facts.” To announce its formation, it published “A Frank Statement” in newspapers across the country. The “Frank Statement” claimed: “Distinguished authorities point out . . . that there is no proof that cigarette smoking is one of the causes [of lung cancer] [and] statistics purporting to link cigarette smoking with the disease could apply with equal force to any one of many other aspects of modem life. Indeed, the validity of the statistics themselves is questioned by numerous scientists.”

According to Dr. Doll, the Frank Statement was a “bald untruth.” While some scientists had questioned the link, most knew at the time of the Frank Statement that smoking caused lung cancer.

Tobacco studies continued throughout the 1950’s in many countries, including Japan, Denmark, and France. In 1957, the United States Heart and Lung Institute, the National Cancer Institute, National Institute of Health, and American Cancer Society appointed a joint committee to advise on the state of the science, and concluded that smoking was a cause of lung cancer. The Auerbach study, published in 1957, showed pictures of various stages to demonstrate how the risk of lung cancer increased after a certain number of years of smoking.

In 1960, the World Health Organization issued a report stating that smoking was a cause of lung cancer, and an editorial in the New England Journal of Medicine stated that no responsible observer could deny the association. Scientists did not yet know what specific substance in cigarette smoke caused lung cancer, but it was proven by 1953 that cigarette smoking caused it by some means, and by 1960, it was indisputable.

Nevertheless, Philip Morris and other tobacco companies continued their campaign of doubt. TIRC continued its work, issuing press releases, making personal contacts with journalists, providing “favorable” materials for editorials, articles, and columns, and providing assistance to the authors of such books as You Don’t Have to Give Up Smoking and Smoke Without Fear.

A 1957 TIRC press release quoted its chairman and scientific director as saying, “No substance has been found in tobacco smoke known to cause cancer in human beings.” The statement was literally true in that the specific mechanism in cigarettes that caused lung cancer was still unknown, but it was misleading, because the cause and effect had been proven.

In the late 1950’s, Philip Morris and other tobacco companies formed another trade organization, the Tobacco Institute, to speak on their behalf. The Tobacco Institute issued press releases, such as the 1961 “Tobacco Institute Statement,” which asserted, among other things, “The repetition by Dr. Wynder of his firm opinions does not alter the fact that the cause or causes of lung cancer continue to be unknown and are the subject of continuing extensive scientific research by many agencies.” And a 1962 press release sent to CBS protesting a program on youth smoking stated, “causes of lung cancer are still unknown.”

The statements were false. In 1961, there were a few other established causes of lung cancer, such as asbestos, but the affected industries were taking precautions to protect people from exposure. Ninety percent of lung cancers were shown to be caused by tobacco. There was no cancer researcher at that time who would say that the causes of lung cancer continued to be unknown.

In 1965, the Tobacco Institute issued a press release based upon the “genetic theory” of well-known statistician Ronald Fisher, who opined that there was a genetic factor that caused people to want to smoke and that made them susceptible to lung cancer. That theory had been repudiated in studies in the 1950’s in Sweden, the United States, and Finland. The press release also referred to the “smoking theory” of lung cancer, even though no serious scientific researcher considered it a legitimate scientific concept in 1965. The United States Surgeon General had already reported the link in 1964.

In the 1950’s, the major cigarette companies, including Philip Morris, entered into a “gentlemen’s agreement” not to present products they marketed as “tested for safety,” or to use test results to compete, such as by claiming that one company’s cigarette has produced less cancer in rats, and not to do animal testing with regard to cancer. The agreement was in place throughout the 1960’s.

In the 1960’s, Congress conducted hearings prior to enacting the Public Health Cigarette Smoking Act of 1969. (E.g., 15 U.S.C. § 1331 et seq.) In March 1965, the Tobacco Institute issued a press release in which it described, among other things, the testimony of RJ. Reynolds president Bowman Gray before Congress on behalf of cigarette manufacturers, including Philip Morris, in opposition to the proposed legislation. Gray told Congress that many scientists held the opinion that it had not been established that smoking caused lung cancer or any. other disease; that there was a very high degree of uncertainty; and that a great deal more research was necessary before definitive answers could be given.

By the 1950’s, tar was and still is thought to contain most of the organic materials that are likely to cause cancer. When cigarettes were unfiltered and contained large particulate matter, they were irritating, which kept smokers from inhaling deeply. The growing use of filtered cigarettes in the 1960’s reduced the amount of delivered tar from about 35 to 25 milligrams, and was thought to reduce the risk somewhat, but filters and flavorings, which act as bronchodilators, made cigarettes easier to smoke. The benefits came in the 1950’s and 1960’s, which saw a reduction from the 35 milligrams in the 1930’s, to 25 milligrams. But there has been no benefit from a further lowering of tar beginning in the 1980’s to 10 or 15 milligrams. And further reduction of tar in the so-called low-tar or “light” cigarettes has not resulted in a safer cigarette. It has affected only the location of lung cancers and the type of cancer that may be contracted.

It has been generally known since the late 1800’s that it is difficult to quit smoking. Scientists have known that nicotine is addictive since the 1920’s, although the how and the why came later. At the time of the first Surgeon General’s report in 1964, however, many thought that in order to be truly addictive, a substance had to be intoxicating, to have a severe withdrawal syndrome, and to be associated with antisocial behavior, such as criminality. The 1964 Surgeon General’s report defined drug addiction as “a state of periodic or chronic intoxication produced by the repeated consumption of a drug.” Since tobacco was extremely difficult to quit, but was not intoxicating and did not involve antisocial behavior, the Surgeon General used the term “habituation.”

In 1965, the World Health Organization discarded the term “habituation” in favor of “dependence,” which encompassed addiction, and “addiction” and “dependence” were generally used interchangeably after that to mean any compulsive drug use. Dependence was defined as giving the use of a substance a higher priority than other things important to the user, like money or health. The intoxication element became obsolete, and habituation fell into disuse. By 1988, the Surgeon General’s report dropped addiction, whether to intoxicating drugs or nicotine, in favor of dependence. But the tobacco companies continued urging obsolete terminology through misleading statements to the public, according to Benowitz.

Internal memoranda demonstrate that as early as 1959, Philip Morris recognized that “[o]ne of the main reasons people smoke is to experience the physiological effects of nicotine on the human system”; and that Philip Morris researchers knew no later than 1959 that addiction was a probable reason why people smoked. A 1969 memorandum shows that Philip Morris’s scientists recognized that nicotine was a drug, but feared regulation by the Food and Drug Administration should this knowledge become public.

Dr. William Farone, who testified for Boeken, was hired in the mid-1970’s by Philip Morris for his expertise in colloid chemistry, which relates to aerosols, such as smoke. It was commonly understood among the Philip Morris scientists at the time he arrived at its laboratory in 1976 that nicotine was addictive. On several occasions, Dr. Osdene described his mission as one to “maintain the controversy,” which Farone understood to mean creating doubt whether nicotine was addictive and whether smoking caused disease.

An internal memorandum shows that by 1972, Philip Morris recognized that the more nicotine a cigarette delivered, the greater its market. By then, the Marlboro brand was outselling the popular brands of earlier years. A competitor, R.J. Reynolds, conducted a study to determine why, and found that the pH of Marlboro smoke was much higher than that of the smoke from any of its brands. The higher the pH in cigarette smoke, the more free-base nicotine is delivered to the smoker. Ammonia raises the pH level, and occurs naturally in tobacco. But Philip Morris added urea to Marlboro tobacco to increase the release of ammonia into the smoke.

In 1977, when Philip Morris scientist Carolyn Levy began to study the effects of nicotine withdrawal, her supervisor, W.L. Dunn, suggested to Osdene that he should “bury” any results, should they show similarities to morphine and caffeine. According to Farone, in 1984 Philip Morris shut down some of its research programs in order to eliminate research that could show that cigarettes were addictive or that could prove that they cause cancer. Senior management no longer wanted to do research that could be used against Philip Morris.

Paul Mele, Boeken’s expert in behavior pharmacology, with additional training in the area of drug abuse, testified that he was employed by Philip Morris from 1981-1984. Philip Morris employed him to work in its secret laboratory where rat studies were conducted in an attempt to identify a nicotine substitute that would eliminate the adverse cardiovascular effects, but still keep people smoking.

A nicotine substitute would have to bind in the same area of the brain and produce the same effects on brain tissue, but Mele and his coworkers were told never to use the words, “drug” or “addiction.” Thus, they euphemistically concluded that rats “will work for” nicotine in the same way that they will work for cocaine or heroin. But the question of addiction or dependence was never in doubt, and their research goal was not to prove or disprove addiction, but to find compounds that would substitute for nicotine, in case nicotine were ever banned.

Dr. Mele wanted to publish a paper on nicotine tolerance during the time he worked for Philip Morris but his superiors would not permit it. He was told the research demonstrated that nicotine was a “dependence producing substance” within the definition of the Diagnostic and Statistical Manual of the American Psychiatric Association, and that it would not be acceptable to the company to have this known by the public. During this period, he heard a Philip Morris officer, Jim Remmington, say, “We all know it is addicting, it’s addicting as hell. And our real concern is stopping these anti-smoking people outside the gates.”

With this evidence in mind, we now mm to a discussion of the issues raised on appeal. We will include further evidence from the record relevant to the specific issues addressed.

DISCUSSION

1. Boeken’s Reliance

Philip Morris contends there is insufficient evidence to support a finding of reliance by Boeken on any false statements or nondisclosures to support the jury’s verdict on fraud. In particular, Philip Morris contends that the evidence was insufficient to prove that Boeken was aware of specific misrepresentations and that he acted upon those specific misrepresentations, citing Mirkin v. Wasserman (1993) 5 Cal.4th 1082 [23 Cal.Rptr.2d 101, 858 P.2d 568] (Mirkin); that the evidence was insufficient to establish a duty to disclose the concealed information; and that any reliance by Boeken was unreasonable and therefore unjustifiable as a matter of law. But before we address these three specific arguments, we need to address the factual presentation by Philip Morris in its briefing to this court.

The jury found against Philip Morris on the fraud claims of intentional misrepresentation, concealment, false promise, and negligent misrepresentation. Philip Morris challenges only the evidence of its duty to disclose and of Boeken’s reliance, not the evidence establishing that it made misrepresentations, made misleading statements and concealed the facts that would have clarified them, or that it made a false promise, all with an intent to defraud. Indeed, claiming such evidence is irrelevant to the argument regarding Boeken’s reliance, Philip Morris does not summarize most of the large volume of evidence showing that it was aware of the health hazards and addictive nature of its tobacco products, or that it undertook a campaign to disseminate falsehoods about smoking and health, and to conceal the truth from the public, including Marlboro smokers such as Boeken, in order to mislead them into believing that their cigarettes were safe and not addictive.

“ ‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162, 479 P.2d 362].) The judgment is presumed to be correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 800 P.2d 1227].) And we presume that the record contains evidence to sustain every finding of fact. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) It is the appellant’s burden to demonstrate that it does not. (Ibid.)

In furtherance of its burden, the appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) Further, the burden to provide a fair summary of the evidence “grows with the complexity of the record. [Citation.]” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290 [130 Cal.Rptr.2d 436].)

The record in this case is very complex. The testimony heard by the jury spans 25 of the 40 volumes of reporter’s transcripts. There are also 75 volumes of clerk’s transcripts in the record. Boeken has provided copies of approximately 40 exhibits admitted at trial, but it appears that there were hundreds more shown to the jury that have not been transmitted to this court. In addition, portions of Boeken’s videotaped deposition were played for the jury, and the parties have lodged a redacted transcript of the deposition, containing what appears to be 300 pages. Videotaped interviews of two other witnesses were lodged at our request, and were not transcribed.

Nevertheless, Philip Morris provided only the briefest summary of the trial evidence, and summarized only those facts which support its theories. Almost all of Philip Morris’s factual summary consists of evidence favorable to its position—evidence showing that the dangers of smoking were well known by the public in the 1950’s and 1960’s, and other evidence from which a jury could reasonably infer that Boeken understood the health risks of smoking.

Even if Philip Morris were to show that the inferences it wishes us to draw are reasonable, we would have no power to reject the contrary inferences drawn by the jury, if they are reasonable as well. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429.) And a recitation solely of Philip Morris’s own evidence is not a fair summary for purposes of determining whether any inferences drawn by the jury are reasonable and supported by substantial evidence. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)

The issue of reliance is inextricably intertwined with the nature of the misrepresentations or concealments attributed to Philip Morris. To expect us to address the issue of reliance without reference to all of the evidence presented at trial regarding the misrepresentations and concealments is, at best, naive. At worst, it is an attempt to deceive.

In lieu of tendering all of the evidence, Philip Morris suggests that Boeken’s counsel, Mr. Piuze, conceded the absence of evidence of reliance and causation during argument on posttrial motions when he answered “No” to the following question by the court: “The question is, can the plaintiff point to a single statement made by Philip Morris that ultimately reached Mr. Boeken that can be traced backward through a definite causal link back to Philip Morris?” But the discussion of the matter did not end with that negative response. Piuze went on to explain to the court that the issue of reliance had been proven by circumstantial evidence, which demonstrates the importance of a thorough presentation of all of the evidence.

“The rule in this state and elsewhere is that it is not necessary to show reliance upon false representations by direct evidence.” (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 814 [94 Cal.Rptr. 796, 484 P.2d 964].) Reliance “ ‘may be inferred from the circumstances attending the transaction which oftentimes afford much stronger and more satisfactory evidence of [reliance] than . . . direct testimony to the same effect.’ [Citations.]” (Id. at p. 814.)

We conclude that there was no concession by Mr. Piuze. While we could deem the failure of Philip Morris to set out the facts in the light most favorable to the judgment a forfeiture of the issue (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881), we have elected not to do so and we have thoroughly reviewed the record. Our independent review has revealed sufficient evidence to support the judgment, as we discuss in the next sections.

A. Substantial Evidence Supports Duty and Actual Reliance

Philip Morris contends that the evidence was insufficient to establish a duty to disclose information that it fraudulently concealed. At the same time, however, Philip Morris concedes that a duty to speak may arise when necessary to clarify misleading “half-truths.” (See Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1082-1083 [60 Cal.Rptr.2d 263, 929 P.2d 582].) But, Philip Morris contends, no duty arises where the plaintiff has not been misled by the half-truths.

Philip Morris confuses the elements of duty and reliance. The duty arises upon the utterances of the half-truths; whether the plaintiff was misled is a question of reliance. (Cf. Randi W. v. Muroc Joint Unified School Dist., supra, 14 Cal.4th at p. 1084.) Since Philip Morris does not challenge the evidence of its half-truths, we turn to its contentions with regard to reliance.

Relying on Mirkin, supra, 5 Cal.4th 1082, Philip Morris suggests that in order to show reliance, Boeken was required to prove that the false or misleading representations were made directly to him and that such proof must include the exact words of the false or misleading representation upon which he relied. We find no such requirements in Mirkin.

As stated in Mirkin, Restatement Second of Torts section 533 provides: “ ‘The maker of a fraudulent misrepresentation is subject to liability ... to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transactions involved.’ ” (Mirkin, supra, 5 Cal.4th at p. 1095.)

We first review the evidence particular to Boeken in connection with an argument that Boeken’s fraud claim cannot stand because he could not recall a particular advertisement that made him decide to smoke.

Even before Boeken became a target member of the group of addicted smokers, Philip Morris targeted Boeken as a member of another group— adolescent boys. Until 1955, Marlboro was marketed primarily to women smokers. At that time, Philip Morris began to reposition the brand as masculine. From the mid to late 1950’s, its ads featured a handsome, virile, tough and independent-looking young man with a tattoo, looking as though he could be a dashing movie star, a detective, a sailor, or a cowboy—the “Marlboro man.”

Marvin Goldberg, Ph.D., Boeken’s marketing, advertising, and consumer behavior expert, explained how such advertising exerts a particularly powerful influence upon adolescent boys. He concluded from a review of Philip Morris’s advertisements that they were intended to target young males from 10 to 18 years old, beginning in 1955. And, in Goldberg’s opinion, the ads were aimed at young male “starters,” first-time smokers.

Goldberg testified that child development literature suggests that young male adolescents are just developing their self-concept, and that they are very self-conscious. They feel that others are equally conscious of them, and want to appear to be mature, strong, independent, and masculine. If they see that a self-confidant, virile, and handsome man is smoking a certain brand of cigarette, they are likely to conclude that if they smoke that brand, they will look less fragile and vulnerable than they really are. And when their peers do the same, the cigarette brand acts as a badge and a magnet.

Philip Morris advertised on popular family television shows in the 1950’s and 1960’s, such as I Love Lucy, the most popular show in 1955. Other popular prime-time shows on which it advertised were Red Skelton and Jackie Gleason, both comedy shows, Rawhide, a western, Perry Mason, a detective show, Route 66, an adventure drama, Alfred Hitchcock and East Side West Side, suspense and mystery shows. Rawhide and Route 66 involved characters similar to the masculine images in the ads of that period.

Television advertising has been shown to be very effective, particularly with children. And more than 30 percent of the audience for such shows as Red Skelton and Jackie Gleason consisted of children, well above the percentage of children in the population.

Goldberg testified that Boeken’s inability to recall being influenced by any particular advertisement does not mean that it was not a cause of his smoking. Goldberg described the various media for advertising, and explained that the average person receives about 1000 advertising messages per day, too many for most people to process, so most are perceived in glimpses, making repetition an important feature in advertising. Thus, even if advertising images remain in the background, and are perceived only in glimpses, repetition causes them to become familiar, creating associations in the minds of people who do not think them through. This results in “associative learning,” and those influenced by it are unlikely to be aware of it.

Associative learning is particularly effective with children. The Surgeon General’s reports of 1994 and 1996 concluded that advertising encourages youth smoking. Studies have shown that the more children are exposed to cigarette advertising, the more they overestimate the number of smokers, and are persuaded that smoking is the norm. Such a belief among children is one of the highest risk factors for youthful smoking. They smoke because “it’s the thing to do.”

And, as the Supreme Court recognized in Mirkin, as well as prior to Mirkin, “ ‘ [cjhildren in particular are unlikely to recall the specific advertisements which led them to desire a product. . . .’ [Citation.]” (Mirkin, supra, 5 Cal.4th at p. 1099, quoting Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 219 [197 Cal.Rptr. 783, 673 P.2d 660].) Boeken’s testimony bears this out. Boeken started smoking at the age of 10, occasionally sneaking butts from ashtrays. At the age of 12, he made play cigarettes from gum sticks, rolling them lengthwise. When he was 13 years old, he began to smoke whole, real cigarettes. He did it because “everybody smoked. All adults smoked. It was fashionable. It was sophisticated. It was cool. It was adult. . . . Sports figures smoked. Race car drivers smoked. Everybody smoked. . . . All the kids smoked.” Boeken wanted to be grown up. He was at “that age,” and that was “the thing to do.”

He wanted to smoke even though it was not pleasurable at first—it caused him to feel dizzy, faint, and to cough, and he had to “train” himself to inhale. At first, he smoked whatever brand he could get his hands on, and then he discovered vending machines, which allowed him to pick the brand he wanted. He used the vending machines in the coffee shops across from his junior high and high schools, where a pack of cigarettes cost only 25 cents and no one interfered.

With the discovery of vending machines, Boeken was able to buy a particular brand, and he chose Marlboros, because “[t]hey were everywhere. They advertised everywhere.” It was the cigarette of choice in his social set, his culture, and all his friends smoked Marlboros. Marlboro ads seemed to be everywhere—at baseball games, sporting events, racing events, and on racing cars. Boeken testified, “I was visually inundated with this brand of cigarette.” And he was “impressed by the ads,” although he could not recall anything about any particular ads between 1957 and 1960. And no particular advertisement came to mind as a factor in his decision to smoke.

To Boeken, Marlboros represented a very macho, sophisticated, hip way of smoking. He perceived a message that it was the one and only cigarette to smoke. Boeken remembered the 1950’s and 1960’s as the age of Playboy magazine, sophistication, machismo, and doing manly things, like smoking cigarettes.

In that era, Boeken thought of himself as a “real guy.” At the time of his testimony, Boeken picked out several advertisements from the 1960’s that looked familiar to him. He remembered the “Marlboro country” ads, and the slogan, “Come to where the flavor is.” Boeken also remembered billboards showing the “Marlboro man” with his lasso, and another with a healthy-looking model in great shape jumping over a fence with one hand. Boeken thought that the healthy and robust images in the cowboy ads implied that Marlboros were good for you.

He thought the Marlboro man was a “man’s man,” like his hero, John Wayne. Boeken rode a motorcycle—his equivalent of John Wayne’s horse, and in 1966, at age 21, he rode around Europe on his motorcycle.

Over the years, another brand’s ad campaign occasionally caught Boeken’s attention, and he tried it for a few days, but always returned to Marlboros, although he was not sure exactly why. He knew he liked the taste better than other cigarettes—they were smoother, yet stronger.

Thus, Boeken started smoking Marlboros as a child for reasons that track Philip Morris’s advertising of the time, and he remembered their themes with fair certainty, as well as how they enticed him to smoke with false images of health, sophistication, and machismo.

“Substantial evidence means such evidence as a reasonable fact trier might accept as adequate to support a conclusion; evidence which has ponderable legal significance, which is reasonable in nature, credible and of solid value. [Citations.]” (Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 142 [126 Cal.Rptr. 690].) We conclude that the foregoing evidence supports the jury’s conclusion that Boeken relied upon advertising by Philip Morris.

We turn now to evidence of Boeken’s reliance on the so-called false controversy.

Boeken started smoking at the age of 10, occasionally sneaking butts from ashtrays. By the time he was 14 years old in 1957, Boeken was smoking two packs a day, and even more as he got older. By the time he was 15 or 16, Boeken had begun to suffer his first bouts of bronchitis. The doctor gave him antibiotics, but did not tell him to quit smoking. Although his high school swim coach told him not to smoke because it would affect his “wind,” meaning endurance, no other teacher told him not to smoke. Most of the teachers smoked as well. Boeken’s mother allowed him to smoke openly at home. She smoked two packs a day herself, and never told him of the dangers of smoking.

Boeken suffered more bouts of bronchitis in his 20’s, and by his 30’s, he suffered two or three each winter. They were always treated with antibiotics, and no doctor ever told Boeken that they were caused by smoking. Many doctors also smoked at that time. Boeken began to suspect in the mid-70’s that smoking bore some relationship to his bronchitis, but he was unable to stop or even cut down on the number of cigarettes he smoked while he was ill, even when it hurt to inhale.

The Surgeon General warnings went on cigarette packs in the mid to late 1960’s. Boeken thought that the warnings were “political more than anything else,” and that they were required by the government pursuant to some personal vendetta of the Surgeon General. He did not even read the Surgeon

General’s warning until after he filed this action. Boeken explained, “I believed the cigarette advertisements. ... I didn’t think there was anything wrong. ... I believed they were good for you. I believed everybody smoked them. You’re back in the 60’s, right? .... I didn’t believe they were unhealthy.”

But Boeken was aware of what he described as a “controversy.” He testified that in the 1960’s, he heard that the cigarette companies had refuted the fact that cigarettes were addictive, dangerous, harmful, or cancer-causing, and he was aware of a “conflict” over the Surgeon General’s warnings. And he relied upon the refutations by the tobacco industry. It was only much later that Boeken discovered there was no real controversy. He testified that if Philip Morris had made the real risk of lung cancer and death clear to him in the 1960’s, when Philip Morris was instead creating a false controversy with regard to the Surgeon General’s report, he would have quit smoking.

In the 1970’s, Boeken heard through various news media that tobacco companies claimed that there was no proof or scientific fact that smoking caused cancer, emphysema, or any other lung or blood disease. He trusted them, and believed the harm was being overstated by others. Other than advertisements, however, he could not recall particular statements made by tobacco companies until much later, when tobacco executives falsely testified before Congress in 1994.

By the 1970’s, he knew that cigarettes were addictive, and that he was addicted, but he believed the statements by the industry that there was no health risk. The first time that Boeken knew that smoking could cause a catastrophic illness was around 1976, when he had his gallbladder removed, and the doctor told him he could get emphysema. He consulted another doctor, who said, “Forget it. You don’t have emphysema. He was playing with you.”

Boeken tried to stop smoking several times over the years. The first time was in 1967, when his girlfriend gave him an ultimatum. He did not want to lose her, so he stopped; but three or four weeks later, he started again, and she left him.

Boeken tried to quit again in 1976, at the beginning of what he termed “the health craze,” when jogging became popular. He wanted to jog too and he started lifting weights, but he felt he needed stronger “wind.” He was unable to stop smoking, however, due to withdrawal and cravings. His withdrawal symptoms consisted of a bad attitude, nastiness, anger, and a huge appetite. He became edgy and snappy, with inappropriate angry reactions.

In 1980, Boeken tried hypnosis to quit. He succeeded for 30 or 40 days, the longest time ever, but he was a “nervous wreck.” His first relapse, a cigarette smoked with a cup of coffee, felt like “the best thing that ever happened” to him. In 1982, Boeken attended a SmokEnders course for three or four weeks, attending three or four times a week. And in 1986 or 1987, he joined Smokers Anonymous, a 12-step program. He was motivated to quit by more frequent bouts of bronchitis, as well as a continuing desire to run, but he claimed that he still did not know that smoking caused lung cancer. Boeken tried Nicorette gum on more than one occasion, and patches, sometimes both at the same time, but he failed to quit.

After a three-month heroin addiction in the late 1960’s, Boeken entered a methadone maintenance program, and quit methadone within three years. In the mid-70’s, Boeken went to Alcoholics Anonymous and stopped drinking in nine months. But he has never been successful at quitting smoking.

In 1981 or 1982, thinking it would lessen his bronchitis, Boeken switched to Marlboro “Lights,” because they were lower in tar and nicotine, and “milder.” As soon as Philip Morris began to market Marlboro “Ultralights,” he switched to those.

On the news in 1994, Boeken saw portions of the testimony of tobacco company executives before Congress. They all denied that tobacco was addictive or harmful. They all denied under oath that it caused cancer. He knew they were lying, but at the time, he still believed them, because he did not think they would lie to the government under oath. Also in 1994, Boeken’s mother, who smoked two packs a day until her death, died of lung cancer, and he had no more doubts about whether smoking caused cancer. It was much later that he learned for the first time that accelerants, additives, or chemicals were added to the tobacco in his cigarettes, in order to increase their addictiveness.

Even then, Boeken was still unable to quit. In October 1999 he was diagnosed with lung cancer and underwent extremely painful surgery to remove the upper part of a lung, and then he began chemotherapy. By that time, however, the cancer had spread to his lymph nodes, and his chance of surviving the disease was less than one percent. Within a year, the cancer had spread to his brain, and there was no chance of survival.

Boeken stopped smoking just before the surgery to remove part of his lung, but started taking an occasional puff or two after the first round of chemotherapy was over, because it calmed him. But he was shattered when he was diagnosed with brain cancer, and felt he needed more, so he bought a pack of Marlboro “Reds”, and was soon smoking two or three packs a day.

Boeken testified that if Philip Morris had made it clear to him in the 1960’s, the 1970’s, or even the 1980’s, that cigarettes cause lung cancer and death, he would not have smoked. At least, he thought he would have made an “honest effort” to quit. He also felt that if Philip Morris had admitted in the 1960’s or 1970’s, not only that smoking caused lung cancer but also that Philip Morris added ingredients to Marlboro cigarettes in order to increase their addictiveness, he would have stopped smoking Marlboros.

The record supports the conclusion of the jury that Boeken, an addicted smoker, was a target of Philip Morris’s misrepresentations and that he actually relied upon its campaign of doubt.

B. Substantial Evidence Supports a Finding of Justifiable Reliance

Philip Morris contends that Boeken’s reliance upon its fraud was unreasonable and therefore, it suggests, unjustifiable as a matter of law. In support of this contention, Philip Morris relies in part upon Ohio law, as interpreted by a federal trial court in an unpublished memorandum opinion, Glassner v. R.J. Reynolds Tobacco Co. (N.D. Ohio Jun. 29, 1999, No. 5:99 CV 0796) 1999 WL 33591006. Philip Morris claims that the federal court of appeals, in Glassner v. R.J. Reynolds Tobacco Co. (6th Cir. 2000) 223 F.3d 343, affirmed the trial court’s ruling that as a matter of law, evidence of common knowledge of the dangers of smoking requires a finding that reliance on the tobacco companies’ fraud is unjustifiable. Philip Morris misreads the appellate opinion. While the appellate court affirmed the judgment, it expressly disagreed with the district court’s ruling on justifiable reliance. (See id. at p. 353.)

Philip Morris also relies upon Massachusetts law, as interpreted by a federal trial court. (E.g., Massachusetts Lab. Health & Wel. v. Philip Morris (D.Mass. 1999) 62 F.Supp.2d 236, 244.) That court held that the facts alleged in the complaint filed by a union trust fund did not amount to justifiable reliance as a matter of law, but applied the same objective standard of reasonableness to both intentional misrepresentations and negligent misrepresentations. (See ibid.)

Under California law, which controls in this case, whether reliance was reasonable is a question of fact for the jury, and may be decided as a matter of law only if the facts permit reasonable minds to come to just one conclusion. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [44 Cal.Rptr.2d 352, 900 P.2d 601].) Further, under California law, whether reliance is reasonable in an intentional fraud case is not tested against the “standard of precaution or of minimum knowledge of a hypothetical, reasonable man.” (Seeger v. Odell (1941) 18 Cal.2d 409, 415 [115 P.2d 977].)

“Exceptionally gullible or ignorant people have been permitted to recover from defendants who took advantage of them in circumstances where persons of normal intelligence would not have been misled. [Citations.] ‘No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool.’ [Citation.] If the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable, however, he will be denied a recovery. [Citations.] ‘He may not put faith in representations which are preposterous, or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth. . . .’ [Citation.]” (Seeger v. Odell, supra, 18 Cal.2d at p. 415.)

As we have discussed, it is presumed that the evidence is sufficient to support the jury’s factual findings, and it is the appellant’s burden to demonstrate that it does not. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) And in furtherance of that burden, the appellant must fairly summarize the facts in the light favorable to the judgment. (Ibid.) We have previously noted that Philip Morris failed to do so, which results in a forfeiture of the contention. (See ibid.)

Notwithstanding the forfeiture, substantial evidence supports a finding that Boeken’s reliance was justifiable. The evidence supports the conclusion that Philip Morris knew in the late 1950’s, when Richard Boeken started smoking, that cigarettes caused lung cancer. Further, it is reasonable to infer that it also knew by that time, or at least well before 1969, that nicotine was addictive, and that the more nicotine its cigarettes could deliver, the more quickly a smoker would become addicted. Understanding the danger of this information, Philip Morris set up its campaign of deception. Boeken testified that his belief in the tobacco companies, rather than the Surgeon General, was wishful thinking or naivete. But he had believed in the honesty of “big business.” Further, Philip Morris had studied and understood nicotine addiction, and from the facts we have previously summarized, it is reasonable to infer that the jury concluded it knew and intended that addicted smokers would reasonably use its misrepresentations and misleading statements to engage in denial and rationalization; and, moreover, that smokers’ ignorance of the increased addictiveness of Philip Morris’s Marlboro brand would keep them smoking Marlboros and ensure their reliance upon such denial and rationalization.

2. Product Liability

Philip Morris contends that Boeken failed to prove the elements of product liability, because “[a] defendant. . . may not be held liable for selling a legal product merely because that product is inherently dangerous,” without “showing either (1) that the product was improperly designed or manufactured; or (2) that the product lacked appropriate warnings.” The problem with this argument is that it does not address all theories of product liability presented to the jury. Thus, even were we to agree with Philip Morris in this argument, the verdict may be affirmed on the basis of the consumer expectations test.

Although denominated “special verdict,” the verdict was a general one, since it contained no findings of fact. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1347, fn. 7 [100 Cal.Rptr.2d 446]; Code Civ. Proc., §§ 624, 625.) “ ‘[Wjhere several issues in a cause are tried and submitted to a jury for its determination, a general verdict may not be disturbed for uncertainty, if one issue is sustained by the evidence and is unaffected by error. [Citations.] When a situation of this character is presented it is a matter of no importance that the evidence may have been insufficient to sustain a verdict in favor of the successful party on the other issues or that reversible errors were committed with regard to such issues.’ [Citation.]” (Mouchette v. Board of Education (1990) 217 Cal.App.3d 303, 315 [266 Cal.Rptr. 1], disapproved on another ground in Caldwell v. Montoya (1995) 10 Cal.4th 972, 984, fn. 6 [42 Cal.Rptr.2d 842, 897 P.2d 1320]; see also Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673 [117 Cal.Rptr. 1, 527 P.2d 353].)

Substantial evidence supports a finding that Marlboro Lights were a defective product under the consumer expectations test. The consumer expectations test is satisfied when the evidence shows that “the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429 [143 Cal.Rptr. 225, 573 P.2d 443].) Some degree of misuse and abuse of the product is foreseeable. (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 833 [20 Cal.Rptr.2d 296].)

Dr. Benowitz testified that Marlboro “Lights” and “Ultralights” are not light at all, since they deliver more than 0.1 milligram nicotine and more than 1 milligram tar per cigarette to human smokers who compensate. Compensation occurs when the smoker adjusts the way he or she smokes in order to get a satisfying amount of nicotine, by covering the holes in the filter, sucking harder, drawing the smoke further into the lungs, and keeping it in longer. Benowitz testified that studies have shown that most smokers believe that light cigarettes are safer than regular cigarettes, and the majority of smokers do not know that they compensate. Compensation by smokers draws carcinogens further into the lungs, which is more likely to cause adenocarcinoma of the lung, a more aggressive form of cancer than those more prevalent among smokers of regular-strength cigarettes.

Philip Morris suggests that the consumer expectations test is, in essence, one for failure to warn, and therefore preempted by the Public Health Cigarette Smoking Act of 1969. Again, we disagree. Product liability under a failure-to-wam theory is a distinct cause of action from one under the consumer expectation test. (Arnold v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, 717 [110 Cal.Rptr.2d 722].)

We turn to Philip Morris’s claims of instructional error.

3. Civil Code Section 1714.45

Philip Morris contends that Boeken was not entitled to a finding of product liability, whether measured under the “risk-benefit” test or the “consumer expectations” test, and that the trial court erred in instmcting with BAJI No. 9.00.5 instead of 9.00.6.

BAJI No. 9.00.6 is derived from the former version of Civil Code section 1714.45, which provided cigarette manufacturers with immunity from product liability actions. (Stats. 1987, ch. 1498, § 3, p. 5778; see Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 837 [123 Cal.Rptr.2d 40, 50 P.3d 751] (Myers).) The statute was originally passed in 1987 and, as pertinent, provided: “(a) In a product liability action, a manufacturer or seller shall not be liable if: [f] (1) The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and [f] (2) The product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts.” (Stats. 1987, ch. 1498, §3, p. 5778, italics added.)

Thus, as originally enacted in 1987, the statute’s enumerated examples of common consumer products included tobacco. (See Stats. 1987, ch. 1498, § 3, p. 5778; Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 860-862 [123 Cal.Rptr.2d 61, 50 P.3d 769] (Naegele).) It was based upon the position taken in comment i of section 402A of the Restatement Second of Torts that “ ‘a manufacturer or seller breaches no legal duty to voluntary consumers by merely supplying, in an unadulterated form, a common commodity which cannot be made safer, but which the public desires to buy and ingest despite general understanding of its inherent dangers.’ [Citation.]” (Naegele, supra, 28 Cal.4th at p. 864, second italics added.)

In 1997, the Legislature amended section 1714.45 to rescind the statutory immunity for tobacco companies as of January 1, 1998. (Stats. 1997, ch. 570, § 1; see Myers, supra, 28 Cal.4th at pp. 832-833, 837.) Thus, “while the Immunity Statute was in effect—from January 1, 1988, through December 31, 1997—no tortious liability attached to a tobacco company’s production and distribution of pure and unadulterated tobacco products to smokers. [Citations.]” (Myers, supra, at p. 840, italics added.)

The statute was expressly retroactive, and while it was in effect, it immunized tobacco manufacturers from liability for conduct before, as well as during, the 10-year period. (Myers, supra, 28 Cal.4th at p. 847; Souders v. Philip Morris Inc. (2002) 104 Cal.App.4th 15, 24, fn. 7 [127 Cal.Rptr.2d 748].) Once it was repealed, however, the statute’s retroactive effect was nullified, and tobacco companies were no longer immune to liability for conduct occurring prior to 1988. (Myers, supra, 28 Cal.4th at p. 847.)

Neither Myers nor Naegele had been decided when Philip Morris filed its opening brief. In its opening brief, Philip Morris argued that repeal of the original section 1714.45 did not nullify its retroactivity, and that it retained immunity from liability that would otherwise have arisen not only prior to 1998, but also prior to the statute’s passage in 1987. Before Philip Morris filed its reply brief, Naegele and Myers were published. Myers held that the immunity statute applied to tobacco only during the 10 years beginning January 1, 1988, and ending December 31, 1997. (Myers, supra, 28 Cal.4th at p. 837.) Naegele confirmed this and also held that the protection of the 10-year immunity statute did 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.” (Naegele, supra, 28 Cal.4th at p. 861.) Therefore, except for the limited 10-year period, Philip Morris was not entitled to have the jury instructed with BAJI No. 9.00.6. (See Comment to BAJI No. 9.00.6 (Jan. 2004); Stats. 1997, ch. 570, § 1.)

Although Philip Morris addressed Naegele and Myers in its reply brief, we permitted it to file a supplemental opening brief. For the first time in its supplemental brief, Philip Morris claims that it requested and submitted a jury instruction that would have limited its liability for any wrongs committed during the 10-year immunity period, proposed special instruction lettered “O.”

Philip Morris’s packet of proposed jury instructions, filed on May 16, 2001, included that proposed instruction, which reads: “You may not find defendant liable on plaintiff’s claims of design defect, negligence, fraud and conspiracy or failure to warn based on anything that defendant did or did not do between January 1, 1988, and December 31, 1997. It was the policy of California during that period to recognize cigarettes as inherently unsafe products that could nevertheless be lawfully sold because they carried adequate warnings regarding their dangers, and to encourage the continued availability of cigarettes and other tobacco products to those adult consumers who wished to use them. This was accomplished by a law that protected producers or suppliers of cigarettes or other tobacco products from legal responsibility for harms suffered by those who voluntarily consumed such products. That law was repealed as of January 1, 1998, and has no legal effect with respect to conduct since that date, and also has no legal effect with respect to plaintiff’s claim for breach of express warranty.”

The problem we have is that we have found no ruling by the trial court rejecting this instruction. The instruction conference was unreported. We did find a cover sheet signed by the trial judge, and file-stamped June 6, 2001, which is entitled “Instructions—Refused Withdrawn, Consisting of 10 pages herein.” But the 10 pages are not attached, unless the cover sheet was meant to refer to the 10 pages attached to the document immediately following it in the clerk’s transcript.

The document immediately following the trial court’s cover sheet is entitled “Objections of Defendant Philip Morris Incorporated to Court’s Rejection of Certain Jury Instructions Proposed by Defendant.” The 10 pages that follow contain seven proposed instructions. Proposed instruction O is not among them.

We requested Philip Morris to provide us with the exact page numbers in the appellate record where the trial court’s refusal to give its proposed instruction O might be found, or to augment the record with a copy of the trial court’s minute order or additional reporter’s transcript, if any, showing the refusal, or to inform this court if there was no such order or ruling. Rather than directly respond to our request, Philip Morris filed a letter brief suggesting that we must assume that the instruction was requested and rejected, because the record is silent with regard to an express ruling, and the instruction conference was in chambers. As authority for its suggestion, Philip Morris states that it knows of no authority to the contrary. In fact, there is no shortage of authority to the contrary. It is well established that error cannot be presumed, and it is the appellant’s burden to provide a record sufficient to show the asserted error. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [240 Cal.Rptr. 872, 743 P.2d 932]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712 [152 Cal.Rptr. 65].)

Relying upon language in Alexander v. Nextel Communications, Inc. (1997) 52 Cal.App.4th 1376 [61 Cal.Rptr.2d 293], Philip Morris contends that we must assume that it requested and the court rejected the instruction, even absent a record of the ruling. In that case, we were satisfied that certain instructions were, in fact, requested but refused, although there was no discussion between court and counsel in the record. (See id. at p. 1379, fn. 3.) But we did not enunciate a rule that whenever the instruction conference is unrecorded, it must be assumed that a particular instruction has been requested and refused.

Here, the evidence is that the instruction was in the proposed packet filed on May 16, 2001. But we cannot conclude Philip Morris actually requested that the court instruct the jury with it. Rather, the inference from the record is that for tactical reasons the instruction was either withdrawn or not proffered to the court by Philip Morris. This inference is consistent with the fact that instruction O was not attached to the “Objections of Defendant Philip Morris Incorporated to Court’s Rejection of Certain Jury Instructions Proposed by Defendant.” It is also consistent with the legal position asserted by Philip Morris at trial, and in its opening brief on appeal: that the statute immunized it from liability for all conduct prior to January 1, 1998, including all conduct preceding January 1, 1988, not just for the 10-year period the statute was in force. A party is not entitled to instructions with regard to a theory or defense that the party has not advanced. (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [34 Cal.Rptr.2d 607, 882 P.2d 298].)

Philip Morris also filed a motion to augment the record, but not with an agreed or settled statement reflecting the in camera instruction conference or any ruling on the instructions. (See Maria P. v. Riles, supra, 43 Cal.3d at p. 1295; In re Kathy P. (1979) 25 Cal.3d 91, 102 [157 Cal.Rptr. 874, 599 P.2d 65]; Cal. Rules of Court, rules 6, 7, 12(a).) Instead, Philip Morris seeks to augment the record with the trial court’s statement of decision regarding Philip Morris’s pretrial motion for summary adjudication, in an attempt to show that requesting an instruction or a ruling on the proposed instruction would have been futile, because the trial court had already ruled against it on that issue. We grant the motion, because the statement of decision was part of the trial court record. But we find the statement of decision consistent with our inference. It discloses the claim by Philip Morris of immunity for all pre-1998 conduct, not just conduct between 1988 and 1998.

We also note that instruction O was incomplete because it did not incorporate the term “unadulterated” within its language. Philip Morris argues that the omission was so minor as to require the trial court to modify the instruction. We disagree. “A trial court has no duty to modify or edit an instruction offered by either side in a civil case. If the instruction is incomplete or erroneous the trial judge may . . . properly refuse it. [Citations.]” (Truman v. Thomas (1980) 27 Cal.3d 285, 301 [165 Cal.Rptr. 308, 611 P.2d 902].)

Philip Morris states in its reply brief that “there is no evidence that Philip Morris, during the 1960’s or at any other t