No Double Recovery When Plaintiff Dies After Suing Manufacturer And Son Brings Wrongful Death Claim.

Decedent brought an action against a cigarette manufacturer seeking damages for lung cancer, but died while the verdict was on appeal. In the present case, decedent’s son brought a wrongful death action against the tobacco company for his father’s death and received $12.8 million for loss of consortium. On appeal, the tobacco company contended the trial court erred in instructing the jury on the measure of damages in that “when a personal injury plaintiff who was fully compensated in a lawsuit for his injuries and resulting physical incapacity dies from those injuries, a surviving child’s wrongful death loss of consortium damages are measured from the decedent’s post-injury diminished condition at the time of death.” The appellate court rejected the manufacturer’s argument, stating it makes little sense since this is not a matter of double recovery and that: “According to [the tobacco company], had [the decedent]lived without lung cancer, but been killed instantly by some other tortious means, [the son] would have been entitled to recover against the tortfeasor; but because [the decedent] died a long, agonizing death caused by [the tobacco company], [the son] is entitled to no recovery. Or, as argued by [the son], under [the tobacco company’s] contention, if two people are hit in a crosswalk by an automobile and one is killed instantly and the other dies in a week from severe injuries, the child of the first accident victim would be entitled to loss of consortium damages but the child of the second accident victim would not.” Boeken v. Philip Morris USA Inc. (Cal. App. Second Dist., Div. 5; July 9, 2013) 217 Cal.App.4th 992, [159 Cal.Rptr.3d 195].