Philip Morris will get another crack at reducing the punitive damages award in a long-running case brought by a cigarette smoker, as the Second District Court of Appeal found there had been improper rejection of the cigarette company’s proposed instruction on those damages. The case is Bullock v. Philip Morris, B164398.

The original punitive damage award in this case was an eye-popping $28 billion dollars. That was later reduced to $28 million. In this appeal, one of the issues had to do with the court’s rejection of an instruction that Philip Morris wanted to get before the jury. The instruction would have directed the jury that “You are not to impose punishment for harms suffered by persons other than the plaintiff before you.”

The obvious point of reference here is the recent U.S. Supreme Court decision in Philip Morris v. Williams, which held that it would violated a defendant’s due process rights to impose punitive damages to punish that entity for harming individuals who are not a party to the suit. The court writes:

A party is entitled to an instruction on each theory of the case supported by the pleadings and substantial evidence for which the party requests a proper instruction, as stated ante. (Soule, supra, 8 Cal.4th at p. 572; Munoz v. City of Union City, supra, 120 Cal.App.4th at pp. 1107-1108.) Proposed instruction V-1 expressed the rule of law later confirmed in Williams, that the jury could not award punitive damages for the purpose of punishing Philip Morris for harming nonparties to the litigation. (Williams, supra, 127 S.Ct. at pp. 1063-1065.)

The denial of this instruction, the court concluded, was prejudicial. It therefore required a new trial to determine the proper amount of the punis.