Whiteley v. R.J. Reynolds

Filed 10/14/09 Whiteley v. R.J. Reynolds CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

INTRODUCTION

Defendants Philip Morris Inc. (Philip Morris) and R.J. Reynolds Tobacco Company (R.J. Reynolds) appeal from judgments in favor of plaintiffs in a combined wrongful death and survival action by the estate and the surviving spouse and children of Leslie Whiteley (Whiteley), a smoker who was diagnosed with lung cancer in 1998 and who died in July 2000.

This is the second appeal by defendants. On the first appeal, Whiteley v. Philip Morris, Inc. et al. (2004) 117 Cal.App.4th 635 (Whiteley I), we reversed a judgment in favor of Whiteley and her spouse Leonard Whiteley on causes of action for fraud by intentional misrepresentation, false promise, and negligent misrepresentation, because the trial court erred in failing to instruct the jury that defendants could not be held liable for their conduct from January 1, 1988 to January 1, 1998, during which defendants enjoyed a statutory immunity. We also reversed a verdict for plaintiffs on a negligent design cause of action and directed entry of judgment in favor of defendants on that claim. (Id. at p. 642.) We remanded for a new trial on the fraud-related causes of action. (Id. at pp. 642, 694.) This appeal arises from that retrial.

On retrial, the jury rendered verdicts in favor of plaintiffs on their causes of action for false promise and negligent misrepresentation. For the personal injury claims, the jury awarded Whiteleys estate $90,640 for past economic damages, which was increased to $225,000 based on a previous stipulation. It awarded Leonard Whiteley $30,000 for pre-death loss of consortium. The jury awarded plaintiffs damages of $2,345,964 on the wrongful death claims. Deadlocking on the issue of whether there was sufficient evidence of malice to warrant punitive damages against Philip Morris, the jury assessed $250,000 punitive damages against R.J. Reynolds on the false promise cause of action. Following a limited retrial of the punitive damages claim against Philip Morris, the jury found in favor of Philip Morris. Judgment was entered against R.J. Reynolds on July 13, 2007, and against Philip Morris on November 19, 2007. These consolidated appeals followed.

Defendants urge us to reverse the judgments, contending: (1) plaintiffs were collaterally estopped by a special verdict in Whiteley I from showing Whiteleys reliance upon false statements by agents of defendants and, therefore, the trial court erred in admitting evidence of such statements by various entities and organizations alleged to be agents of defendants; (2) the jurys findings of Whiteleys reliance on false promises or other misrepresentations by defendants was unsupported by substantial evidence; and (3) the personal injury action (as distinguished from the wrongful death action) was barred by the statute of limitations.

We shall affirm the judgments.

BACKGROUND

A. Whiteleys Smoking History[1]

Viewed in the light most favorable to the judgment, the evidence shows that Leslie Whiteley, who was born 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. [P]eer pressure was also a factor. [There was not just one reason that] influenced her to start smoking cigarettes. She recalled cigarette advertisements on TV during her childhood, particularly the Winston song on the Flintstones cartoon series . . . . She recalled seeing advertisements for cigarette brands while watching TV during her junior high school years. (Whiteley I, supra, 117 Cal.App.4th at pp. 642-643, fns. omitted.)

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. [Whiteleys mother] 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. (Whiteley I, supra, 117 Cal.App.4th at p. 643.) Whiteley did not believe her. When the high school dean caught Whiteley smoking in the bathroom, [Whiteley] was suspended for breaking the rules, but the dean did not tell her she should not smoke because of health consequences. (Id. at p. 643.) The dean testified she, herself, smoked, but not excessively. She did not think it was hazardous to herself. Although the dean might have understood in the 1970s that smoking one pack a day could cause lung cancer, she did not think about it. Smoking was widespread at school and in the community. There was smoking everywhere.

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.  (Whiteley I, supra, 117 Cal.App.4th at p. 643.) 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 didnt belong in. She believed the tobacco companies had said that it was safe to smoke. [She testified, You . . . guys [defendants] said that these were safe.] Although she could not say when she heard this information, she believed the source of this information must have been a media oror 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 didnt 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, [or not running as fast] [t]he day the doctor told me I had lung cancer.  (Whiteley I, at p. 643.) Asked whether before that time she believed that the manufacturers of the cigarettes she smoked, specifically Philip Morris and R.J. Reynolds, would sell them if they knew cigarettes caused serious injury or death, Whiteley responded, No. I did not believe that they would sell me something that would kill me.

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. (Whiteley I, supra, 117 Cal.App.4th at p. 643.)

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 plaintiffs expert Neal Benowitz, who analyzed Whiteleys smoking history and behavior under the Fagerstrom Dependence Questionnaire, Whiteley was highly addicted.[[2]] (Whiteley I, supra, 117 Cal.App.4that p. 644.) Also opining that Leslie was so addicted to cigarettes that it made it extremely difficult for her to try and quit, was her pregnancy doctor, Jeffrey Randa Richardson. Richardson also testified that Whiteley was not a sophisticated person. She was fairly simplistic and in his opinion, a lot of things were kind of beyond her ability to grasp how important they were.

On one occasion Whiteleys husband, Leonard, was told by his doctor that he was on the fast track to emphysema if he did not quit smoking. When he mentioned this to Whiteley, she replied that she didnt need to quit. She was healthy, and smoked a different kind of cigarette than he did. Otherwise, Leonard did not discuss any dangers of smoking with her. He also testified that in the community one would hear both sides arguing different issues and when he was a smoker, he didnt really think about it. He testified that he heard pros and cons in newspaper articles and papers and radio programs, TV programs, where youd hear people talking both sides of the issue. He would hear one group of people . . . saying one thing, scientifically, . . . and then the other side saying, no, thats not supported. Its not accurate science or . . . [i]ts bad, junk science. He thought this latter view was being communicated by the tobacco company. Thus, although he heard warnings about health hazards of smoking, he did not believe them at the time. He heard contrary information from the tobacco companies through different means, such as ads, talk shows, magazines, and sports figures. He believed the information was coming from the tobacco companies and he believed them, because he was using the product. In hindsight, he was addicted and believed the side that supported his using the product. However, he and Whiteley did not think of it in those terms at the time. Its just something that you do. Leonard, too, believed one could get a cough from smoking. He did not believe it could cause lung cancer or death. He understood that emphysema would make his cough worse.

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 I, supra, 117 Cal.App.4th at p. 644.) Whiteley first understood that smoking could cause serious disease in June 1998, when the doctor told her she had lung cancer. Whiteley died on July 3, 2000, at the age of 40. (Ibid.)

B. The False Controversy

On appeal, defendants do not dispute that smoking cigarettes causes lung cancer or that smoking cigarettes caused Whiteleys lung cancer. Nor do they challenge the sufficiency of the evidence that by the mid-1950s medical authorities agreed and the tobacco industry (including these defendants) knew and admitted privately that smoking causes lung cancer. By the mid-1950s there was a consensus in the scientific community that cigarette smoking was a cause of lung cancer. By 1957, all serious scientists had accepted that cigarette smoking was the most important cause of lung cancer.

In 1953, sales of cigarettes dropped, following the release of scientific studies showing a link between cigarette smoking and lung cancer, and wide publicity that cigarette smoking was a cause of lung cancer. According to witness Kenneth Michael Cummings, an expert in health behavior and health education, who had reviewed masses of internal tobacco industry documents, the cigarette companies were quite concerned about how the public would respond to the information from the Surgeon General and the other health groups and, basically, mounted . . . a public relations campaign to counter that information by creating doubt and providing an illusion . . . of controversy about the smoking-and-health issue. Defendants and other cigarette manufacturers agreed to act together to counter mounting scientific evidence of the health risks of cigarette smoking. The cigarette industry launched a massive public relations campaign to reassure smokers and the general public that it was safe to smoke and that there was no evidence of a health hazard. As a result of the public relations effort, cigarette consumption increased.

A major part of this strategy was the creation in 1953 of an independent research institute that the public was told would attempt to find the truth about smoking and health. This research arm, the Tobacco Industry Research Committee (later renamed the Council for Tobacco Research (hereafter TIRC or CTR)), was in fact  an industry shield.  It provided advice and technical information as needed at court trials, supplied spokespersons for the industry, and a base for introduction of witnesses. TIRC was formed in 1953 by the major cigarette companies, including defendants here. The governing committee was made up of tobacco executives, including those representing defendants. The public relations campaign included not only advertising, but articles appearing to come from independent sources. It included press releases claiming that TIRC intended to research the health issues surrounding cigarette smoking, which in turn were picked up and published by newspapers and other media. The campaign was approved by both defendants. The public relations firm of Hill and Knowlton was hired to conduct the campaign. In April 1955, a report was prepared detailing the activities that had been conducted through TIRC on behalf of the cigarette manufacturers to that date. From 1953 through 1958, the recommendations of Hill and Knowlton were put into effect on behalf of the tobacco industry. Defendants were on the committee that determined whether to accept or reject the Hill and Knowlton proposals. All suggestions that Hill and Knowlton made were carried out.

The Tobacco Institute (TI) was split off from TIRC in 1958, following a July 30, 1957 letter from Edward Darr, president of defendant R.J. Reynolds, to the president of American Tobacco Company in which Darr urged the formation of a public relations entity separate from TIRC to go on the offensive regarding the public health claims against smoking. The purpose of TI was to handle public relations activities on behalf of the tobacco companies and specifically [t]o counteract the health charges brought up against smoking [and] to create doubt in the publics mind about the harm caused by cigarettes. This was a consistent effort from TIs formation up to the immunity period that began in 1988. A May 1, 1972 internal memo to H.R. Kornegay, the president of TI, from Fred Panzer, the vice-president of TI, acknowledged that for 20 years, the industry had employed a consistent strategy of creating doubt about the health charge without actually denying it and advocating the publics right to smoke without actually urging them to take up the practice. The campaign to create the illusion of controversy about the hazards of smoking was highly effective.

The first Surgeon Generals report in 1964 was prepared by an independent committee of scientists. Each report thereafter surveyed new research and findings on the issue of smoking and cancer, and occasionally presented an overall cumulative review of research.

Referencing the first Surgeon Generals report, a January 29, 1964 Philip Morris memo from George Weisman, vice president of marketing, to Joe Cullman, president of Philip Morris, described the need, not only to create doubt and to call for further research, but also in the near future [to] provide some answers which will give smokers a psychological crutch and self-rationale to continue smoking. The psychological crutch was provided by the massive public relations activities at the cost of millions of dollars expended annually by TI, TIRC, CTR and the individual tobacco companies themselves, contributing to those organizations.

The activities of the tobacco industry, particularly TIRC, CTR, TI and their spokespersons, countering the Surgeon Generals reports were related in detail by Dr. David Burns, a doctor specializing in lung disease, who has worked on every Surgeon Generals report since 1975. Dr. Burns testified that from the time the U.S. Public Health Service first issued a report in 1957, linking cigarette smoking and cancer, through December 1987, the tobacco industry public relations activities substantially interfered with communication to people about the risks of smoking and the personalization of that; that is, the acceptance by smokers that their own smoking was indeed causing themthem, as individuals, disease. The industry published press releases and reports casting doubt on the government reports and falsely claiming the existence of a controversy that did not exist among mainstream scientists. To counter the public health information relating to smoking and disease, from 1965 through 1987, the tobacco industry waged a persistent, determined and well-funded public relations campaign that insisted the information was not complete and that the science linking cigarette smoking to serious disease and death was not definitive. This effort was widely publicized. Every time the Surgeon Generals report was mentioned in a newspaper, the last paragraph was always devoted to the tobacco industry response that none of the report was accurate. This was part of the total environment around the smoker that influences a smoker to quit or not.

Public statements, interviews and responses by executives of defendants Philip Morris and R.J. Reynolds were consistent with this message. They reiterated that the claims of a causal relationship between smoking and disease were erroneous; that there was no conclusive evidence that an element in tobacco or tobacco smoke causes any human disease; that more research was needed; and that the industry had established TIRC /CTR in a sincere attempt to determine what harmful effects, if any, smoking might have on human health.

On many different occasions, many different representativesof the tobacco companies, including the chief executive officer and president of defendant Philip Morris, publicly stated that if and when it was reliably shown that particular substances in smoke caused harm, they would remove the substances. In a 1954 speech, Philip Morriss senior executive and board member Weissman stated, I would only like to say this on behalf of officials at Philip Morris and I believe this represents the view of the other manufacturers, the jobbers, retailers, and everyone in this room: If we had any thought or knowledge that in any way we were selling a product harmful to consumers, we would stop business tomorrow.  In a 1976 interview, James C. Bowling, vice president of Philip Morris, urged more research and reiterated that if anyone ever identified any ingredient in tobacco or smoke as being hazardous to human health, or being something that shouldnt be there, we could eliminate it, but no one ever has.

Nor was the tobacco industry, including defendants Philip Morris and R.J. Reynolds, forthcoming with information they did have that would have been helpful to the public health community. The industry had a much more complex and sophisticated understanding of the chemical makeup of smoke, the carcinogens present in the smoke, and the relationship of the chemicals to the production of cancer. This information would have been completely useful in formulating the understanding of cigarettes for preparation of the Surgeon Generals reports and in attempts to educate the public.

C. Whiteleys Information Environment

Evidence was presented about the information environment in which Whiteley began smoking and continued smoking. A massive amount of public relations information was put out by TI and the cigarette companies from the time Whiteley was a preteen up to the beginning of the immunity period in 1987. It was described by Cummings as wallpapering the environment.

Dr. Richard Pollay, an expert in consumer behavior, testified about health claims made for cigarettes from the 1920s through the 1940s, and the shift in the 1950s from explicit health claims to health reassurances following a Readers Digest article about the link between smoking and lung cancer. He testified that consumers are rarely aware of the influence of advertisements on their behavior. Advertisements before Whiteleys birth in 1959 would have had an indirect influence on her smoking behavior, shaping the attitudes, opinions and beliefs of her parents, neighbors, and people in her community. That was the world into which she was born. Extensive national television advertising was done by defendants during the time Whiteley was growing up. Children are particularly drawn to cartoon characters and jingles are particularly memorable, planting the message in a reliable way. A substantial percentage of preteens watched the Flintstones. Defendants advertised on numerous television shows with a significant percentage of teens and preteens in the audience. Extensive cigarette advertising was also done in magazines and other periodicals of all types. By the late 1960s, there was an upsurge in smoking by women, attributable to an upsurge in ads targeting women and the development of new brands targeted to women.

Pollay testified that the ads and television programming occurring before Whiteley began smoking in 1972 would have had a substantial influence on her. Their influence would have been cumulative, [s]haping how she perceives cigarettes. How glamorous cigarette smoking was. The extent to which people who were engaged in athletic behavior or prestigious occupations or sports, might be smokers. What type of people smoked what types of brands. [] So I think as she comes into the marketplace and starts to be tempted herself, all her perceptions about smoking in general and brands in specific have been shaped by her life history of having grown up in a world dense with advertising. When the Surgeon Generals 1980 report described the health consequences of cigarette smoking for women, TI at the same time put out its own information and report contradicting the Surgeon General. All these contradictions went into the information environment, keeping the uncertainty going. Pollay opined that it was not surprising that people were not able to identify the source of information as TIRC or TI because the best public relations has no fingerprints on it; that is, you dont know where its coming from. Theres just a story. In fact, in his review of TIRC documents from Hill and Knowlton, there were discussions of how to get the story into mass media without leaving fingerprints. Moreover, he testified, that when there is a large volume of information being put into the media, is it unlikely that an individual is going to remember a specific statement from a specific source.

Although smoking is a complex behavior, nicotine is the primary, single reason people smoke. The difficulty in quitting smoking is due in large measure to the fact that smokers become addicted to nicotine. The heavier the smoker, the higher the relapse rate. Cummings testified that people tend to articulate or parrot what they have heard or seen from all forms of advertising and Whiteley had parroted some of these statements made by TI, TIRC and CTR. Cummings also testified that, as a nicotine cessation expert, he had never come across a smoker who had heard of TIRC, but he had heard people he was trying to help quit cigarettes make statements, similar to those expressed by Whiteley, that they believed the tobacco companies over the health community. This was not an unreasonable position and Cummings spent a considerable amount of time educating the public about the reality of such statements.

Dr. Neal Benowitz, an expert on nicotine addiction, testified that smokers begin smoking for psychosocial reasons, usually between ages 16 and 20. Very quickly, the pharmacologic effects of nicotine take over. Nicotine has effects on your brain, and then after awhile you stop smoking even independent of your friends but by yourself for nicotine effects. Then you start having nicotine tolerance and withdrawal, and then youre smoking for what I call the pharmacologic reasons. So it transitions from social smoking in the beginning to pharmacologic smoking. Benowitz opined that if Whiteley had said she heard the tobacco companies saying that the link between smoking and disease had not been proven, she did not manufacture that statement. Statements that there were scientists who had not agreed that smoking caused disease and that causation was not proven were being made by tobacco companies and others related to the industry. Those statements gave the addicted cigarette smoker some means of denial in terms of their own smoking. [A]n addictive person still needs to think that what theyre doing makes some sense . . . you try to find something to support your behavior. [] And if people are saying you should quit because its bad for you and you can say, Well, here is a reputable source that says thats not even proven; so, therefore, I can keep on doing what I am addicted to doing . . . . Benowitz testified that such addictive behavior was really common, particularly with regard to cigarettes.

DISCUSSION

I. Collateral Estoppel

Defendants contend that plaintiffs theory that Whiteley relied on false statements by defendants agents, TI, CTR and TIRC, was barred as a mater of collateral estoppel by the jurys special verdict findings in Whiteley I, supra, 117 Cal.App.4th 635, rejecting plaintiffs two conspiracy claims for lack of reliance. Consequently, defendants maintain the trial court erred in admitting evidence of allegedly false statements by TI, CTR and TIRC, as agents of defendants, and in refusing instructions that would have precluded the jury from imposing liability on defendants for those statements. In Whiteley I, the jury rendered two special verdicts on the conspiracy causes of action, finding that defendants together or with other tobacco companies, or with others, enter[ed] into an agreement to misrepresent a fact [and to conceal a fact] regarding the health effects of cigarette smoking with the intent to defraud the public, including Whiteley; that Philip Morris and R.J. Reynolds, together or with other tobacco companies, or with others did misrepresent such a fact and did conceal such a fact; but that Whiteley would have acted as she did if she had known of the misrepresented and concealed fact.

On appeal in Whiteley I, defendants argued that they were entitled to a new trial on the fraud claims because the jury verdicts rendered on the three affirmative fraud claims (finding that Whiteley had justifiably acted in reliance on the misrepresentations) were inconsistent with the verdict on the conspiracy to defraud claim[s] (finding no reliance). The trial court rejected this argument upon defendants new trial motion, finding the verdicts reconcilable. (Whiteley I, supra, 117 Cal.App.4th 635, 694, italics added.) We found it unnecessary to address the inconsistent verdict claim as we determined that a retrial [was] required in any event because of prejudicial error on the Immunity Statute issue. (Ibid.)

On remand in this case, plaintiffs again alleged a conspiracy between the defendants and others, identified as other major cigarette makers, the tobacco industrys various trade associations, public relations entities, and so called research organizations, including but not limited to TIRC, CTR and TI, defendants attorneys and others. However, plaintiffs did not pursue a conspiracy theory at trial, as they had in Whiteley I. Rather, as found by the trial court in rejecting defendants new trial motion, plaintiffs contended that CTR, TI and TIRC were acting as defendants agents when they sponsored certain representations or false promises. Defendants objected to the introduction of any evidence or argument relating to statements made or actions taken by CTR, TI and TIRC on the ground, among others, that plaintiffs were collaterally estopped by the special verdict in Whiteley I from presenting the agency theory to the jury. They also sought an instruction that [y]ou may not find that the Defendants are liable for any misrepresentation or concealment of facts regarding smoking and health that were made pursuant to an agreement between the Defendants, or between either Defendant and any other entity, such as the Tobacco Institute. The court rejected defendants collateral estoppel argument, allowed the evidence, and denied defendants proposed limiting instruction.[3]

Although content on the previous appeal to seek a retrial of the fraud claims due to alleged inconsistency with the conspiracy special verdicts, on this appeal, defendants seek a determination that the jurys findings of no reliance by Whiteley in connection with the conspiracy claims in Whiteley I collaterally stopped plaintiffsfrom pursuing an agency theory with respect to TI, CTR and TIRC on the fraud causes of action. We disagree.

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. (Rest.2d Judgments,  27, p. 250.)

Collateral estoppel is one of two aspects of the doctrine of res judicata. In its narrowest form, res judicata  precludes parties or their privies from relitigating a cause of action [finally resolved in a prior proceeding].  [Citations.] But res judicata also includes a broader principle, commonly termed collateral estoppel, under which an issue  necessarily decided in [prior] litigation [may be] conclusively determined as [against] the parties [thereto] or their privies . . . in a subsequent lawsuit on a different cause of action.  [Citation.] [] Thus, res judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. Moreover, because the estoppel need not be mutual, it is not necessary that the earlier and later proceedings involve the identical parties or their privies. Only the party against whom the doctrine is invoked must be bound by the prior proceeding. (Lucido[, supra,] 51 Cal.3d 335, 341  . . . ; [citations].) (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828; accord, Smith v. ExxonMobil Oil Corp. (2007)153 Cal.App.4th 1407, 1413-1414.)

Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements. [Citation.] (Lucido, supra, 51 Cal.3d at p. 341, fn. omitted, italics added.)

Collateral estoppel (like the narrower claim preclusion aspect of res judicata) is intended to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation. (Lucido, supra, 51 Cal.3d 335, 343.) However, even where the minimal prerequisites for invocation of the doctrine are present, collateral estoppel  is not an inflexible, universally applicable principle; policy considerations may limit its use where the . . . underpinnings of the doctrine are outweighed by other factors.  (Ibid., quoting Jackson v. City of Sacramento (1981) 117 Cal.App.3d 596, 603; [citation].) (Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 829.)

We review the trial courts determination as to the applicability of collateral estoppel de novo. (Smith v. ExxonMobil Oil Corp., supra, 153 Cal.App.4th at p. 1415.)

Defendants assert that the threshold requirements of collateral estoppel are present here. At the outset, the parties debate whether the jurys conspiracy findings were made in former proceedings and whether they were final. We need not address the parties contentions on these requisites, as we are convinced that defendants did not carry their burden of demonstrating that the issue of Whiteleys non-reliance upon misrepresentations by TI, CTR, TIRC, or other trade associations was necessarily determined by the special verdicts in Whiteley I, finding that Whiteley would have acted as she did had she known of the misrepresentation and concealed fact that was the object of the conspiracy.

The agency theory upon which plaintiffs proceeded in the retrial of the fraud causes of action on remand (in Whiteley II), did not present identical factual issues necessarily decided by the jury in connection with the conspiracy theory in Whiteley I, supra, 117 Cal.App.4th 635.

The identical issue requirement addresses whether identical factual allegations are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.] (Lucido, supra, 51 Cal.3d at p. 342; see Evans v. Celotex Corp. (1987) 194 Cal.App.3d, 741, 745.) The question of coconspiracy and agency are not identical causes of action or theories of liability. Indeed, agents of a corporation cannot conspire with their corporate principal where they act in their official capacities on behalf of the corporation and not as individuals for their individual advantage. (See e.g., Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994)7 Cal.4th 503, 512, fn. 4.) Nor is the principals liability for the promises of its agent, the same as the legal responsibility of a coconspirator. We recognize that collateral estoppel may apply even though the causes of action are not same, where there is an identity of factual or evidentiary issues (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment,  419, pp. 1064-1066), but we are not persuaded that the factual or evidentiary issues underlying the coconspiracy theory in Whiteley I, supra, 117 Cal.App.4th 635,were the same as those underlying the agency theory in Whiteley II. The special verdicts in Whiteley I did not identify either the coconspirators or the particular misrepresentations upon which the jury determined Whiteley did not rely. At the same time, the jury in Whiteley I also found Whiteley did reasonably rely upon misrepresentations and false promises made by defendants. Defendants have not shown the issues were identical.

The jury in Whiteley I, supra, 117 Cal.App.4th 635,did not necessarily decide that TIRC, CTR and/or TI were coconspirators with defendants. Plaintiffs in Whiteley I alleged and argued that defendants conspired with other tobacco manufacturers, their trade associations, their attorneys and others and that defendants could be liable on a conspiracy theory for the misrepresentations and concealments of these entities as coconspirators. Plaintiffs made the similar allegations in their consolidated amended complaint on retrial below, specifically identifying TIRC, TI and CTR as coconspirators. However, plaintiffs stipulated to dismissal of the conspiracy cause of action in Whiteley II, recognizing that it was not a separate cause of action, but a theory of joint liability. Plaintiffs did not pursue a conspiracy theory on retrial.

The conspiracy special verdicts in Whiteley I did not identify TI, CTR or TIRC as coconspirators, either expressly or by implication. Moreover, the questions relating to the conspiracy were phrased in the disjunctive, for example: Question 1: Did defendants Philip Morris and R.J. Reynolds, together or with other tobacco companies, or with others, enter into an agreement to misrepresent a fact regarding the health effects of cigarette smoking at any time? (Italics added.) The jury responded Yes with respect to each of the two defendants. However, the special verdicts did not disclose whether the jury found the conspirators to be only Philip Morris and R.J. Reynolds together, whether they included some or all of the other tobacco companies, or whether the undesignated others included the defendants attorneys, public relations firms, and/or TI, CTR and TIRC.

Defendants argue that the issue of these entities conspiracy with defendants and Whiteleys lack of reliance on their misrepresentations and concealments was necessarily decided by the jury in Whiteley I, because the issue was not entirely unnecessary to the conspiracy special verdicts there. For collateral estoppel to apply, [t]he courts have previously required only that the issue not have been entirely unnecessary to the judgment in the initial proceeding. [Citations.] (Lucido, supra, 51 Cal.3d at p. 342; see 7 Witkin, Cal. Procedure, supra, Judgment, 432, p. 1084 [If a finding or other determination of an issue in the first action was entirely unnecessary to the judgment, it will not have the effect of a collateral estoppel. [Citations.]].)

Defendants concede that where it is not possible to determine whether the jury in a prior proceeding decided a specific fact as part of its verdict, collateral estoppel does not apply. ([Rutherford v. California(1987) 188 Cal.App.3d 1267, 1285].) Although they argue that is not the case here, we believe that is precisely the case.

On these conspiracy special verdicts in Whiteley I, supra, 117 Cal.App.4th 635, it is impossible to say that the jury found that TI, CTR and/or TIRC were coconspirators with defendants or that they conspired to make misrepresentations. Further, findings that TI, CTR and/or TIRC were coconspirators or that they conspired with defendants to make misrepresentations were entirely unnecessary to the special verdict on the conspiracy claims. This case is unlike Lucido, supra, 51 Cal.3d 335, or Evans v. Celotex Corp., supra,194 Cal.App.3d 741, upon which defendants rely.

In Lucido, the trial court expressly found after a probation revocation hearing at which indecent exposure was the only contested issue, that the prosecution had not proved the indecent exposure allegation. (Lucido, supra, 51 Cal.3d at pp. 340-341.) It nevertheless revoked probation on the basis of the defendants conceded drug use. The defendant argued that the express finding at the revocation hearing that the prosecution had failed to prove its case precluded a later criminal prosecution for the same indecent exposure. (Id. at p. 339.) Although refusing to apply collateral estoppel for public policy reasons (ibid.), the Supreme Court concluded that the courts finding was not  entirely unnecessary  to the judgment modifying the terms of the probation, because all parties anticipated that the court would treat the petitioner differently with respect to probation revocation if it found he committed indecent exposure in addition to the conceded drug use. (Id. at p. 342.)

In the instant case, there is not even a finding linking TIRC, CTR or TI to the conspiracy special verdict.

In Evans v. Celotex Corp., supra, 194 Cal.App.3d 741, the appellate court held that where the plaintiff lost his asbestos personal injury suit and then died, the ensuing judgment collaterally estopped his heirs from any new lawsuit for wrongful death arising from the same injury. The court rejected the heirs argument that the general verdict in favor of defendant in the personal injury action did not necessarily mean that the jury found the defendant was not liable. A general verdict implies the existence of every fact essential to support the judgment. [Citation.] (Id. at pp. 744-745.) [T]he prior defense verdict negatives the existence of liability of Celotex for Evanss injuries. Plaintiffs suggest the jury could have reached their verdict on alternative bases: (1) Evans failed to prove causation; (2) Evanss condition was not asbestos related; or (3) that the jury could not make up its mind. Each of these alternatives conclusively establishes that Celotex is not liable for Evanss condition. Contrary to plaintiffs contention, there can be no other interpretation of the jurys general defense verdict. Accordingly, we hold that the issues in the instant action were decided in defendants favor in the prior adjudication and cannot be relitigated. (Id. at p. 745.)

Of course, in Whiteley I, supra, 117 Cal.App.4th 635,there was no general verdict in favor of defendants conclusively establishing their lack of nonliability for Whiteleys injuries. Nor were the conspiracy special verdicts such that we can conclude that the issue of Whiteleys lack of reliance on misrepresentations or concealments made by TIRC, CTR or TI was necessarily decided or not entirely unnecessary to the verdict.

Defendants argue that there is no basis for speculation that the jurys conspiracy finding did not include TI, CTR and TIRC, as those organizations were the focus of plaintiffs conspiracy claim in Whiteley I, and the agreements that gave rise to the conspiracy were the 1953 agreement to create TIRC (that later became CTR) and the later agreement to create TI. However, the jury was not required to find that these three entities were members of the conspiracy in order to find that a conspiracy existed between defendants and/or other tobacco manufacturers and/or others.

The burden of proof was on defendants below to show that the requisites of collateral estoppel were present. (Lucido, supra, 51 Cal.3d at p. 341.) They failed to carry that burden. Consequently, we conclude that plaintiffs were not collaterally estopped from presenting evidence in support of the theory that Whiteley relied upon misrepresentations and concealments by TI, CTR and TIRC acting as agents of defendants.[4]

II. Substantial Evidence of AgencyControl

Defendants contend that plaintiffs failed to prove that TI, CTR and TIRC were defendants agents. They argue that there was no evidence that either R.J. Reynolds or Philip Morris, acting individually, controlled or was capable of controlling those trade associations. (See F. Hoffman-LaRoche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 797 [[T]he hallmark of agency is the exercise of control over the agent by the principal].) Agency is the fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principals behalf and subject to the principals control, and the agent manifests assent or otherwise consents so to act. (Rest.3d Agency (2006)  1.01.)

Defendants argue that the evidence established only that they constituted a minority of the membership of TI, CTR and TIRC, each of which could act only upon approval by a majority of members.[5] Mere membership in an organization is not sufficient in and of itself to establish control. Nor does sponsorship alone suffice to render the sponsor the guarantor of the truth of all statements made in a publication. (See Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1035-1036 [in action for defamation based on posting of allegedly defamatory email authored by a third party, web operators sponsorship agreement did not give the operator practical control of editorial content but instead disclaimed control by principal].)

An unincorporated association member is liable for torts where the member personally participates in, authorizes, or ratifies the wrongful act. Liability for the acts of other members or third parties is based on the agency doctrine of respondeat superior. [Citations.] (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  37,at p. 100, citing among others, Steuer v. Phelps (1974) 41 Cal.App.3d 468, 472.)

The evidence here showed that TIRC, TI and CTR were founded by defendants and a small group of tobacco manufacturers that together controlled these entities. Defendants not only participated in setting up and funding these entities, but also in approving their budgets and decisions. Each of the defendants at various times approved and ratified the statements made and actions taken by these organizations, which were created specifically for the purpose of being spokespersons for defendants and other tobacco manufacturers, and even more particularly for the purpose of changing the publics mind about the harm caused by cigarettes, through making false promises and representations regarding the links between smoking and health. Defendants never publicly contradicted any of the false or misleading statements made by these entities. In fact, in a letter dated July 30, 1957, from the president of defendant R.J. Reynolds, Edward Darr, to the president of the American Tobacco Company, Darr affirmed that TIRC had done a good defensive job of counteracting the negative health claims about smoking and proposed the offensive public relations campaign, that resulted in the formation of TI in 1958.

Defendants heavily influenced the independent research the entities purported to do. For example, following the Surgeon Generals report, a 1964 memorandum from Weissman, Philip Morris vice president for marketing, to Cullman, president of Philip Morris, advised mounting a public relations campaign to counter the Surgeon Generals report by creating doubt and providing an illusion of controversy about the smoking-and-health issue. Cummings testified that a massive public relations campaign was financed by the entities and by the tobacco companies, including defendants, who funded them and who heavily influenced the so-called independent research TIRC and later CTR purported to do. This was the public relations program that was executed over the next decades. When defendants executives spoke publicly, they repeated the falsehoods put out by TI and CTR that there was no evidence that smoking was harmful, that there existed a controversy and doubt on the matter, that the tobacco industry was doing research which, if it uncovered anything harmful, would result in the harmful ingredient being removed.

The control exercised by defendants over these entities they created and maintained is illustrated by the 1964 memo from Philip Morris executive Weisman to company president Cullman, suggesting as part of the campaign to counter the Surgeon Generals report and provide smokers a psychological crutch to keep smoking, that a press conference should be called at which Dr. Clarence Cook Little, science director of TIRC, and other research directors and scientists would participate. The memo even detailed the approach that Little and the others would take, as part of a larger, overall public relations strategy. Further, the general counsel of the cigarette manufacturers, including those of defendants here, were responsible for all research funding decisions for the TIRC/CTR. The general counsel met monthly and determined which special projects to fund. The special projects typically explored alternate causations than cigarette smoking for diseases such as lung cancer. They were quoted in the White Papers issued by the entities, were another form of creating a false controversy, and gave an air of legitimacy to the alleged controversy. The industry continued to fund research in order to show they did not agree that the case against smoking was closedfunding research for public relations purposes.

Considered as a whole, the record provides substantial evidence that defendants, together with other tobacco companies, controlled TIRC, CTR and TI, that defendants approved and ratified the acts of these entities, and that these entities were agents of defendants.

III. Reliance

As they did in Whiteley I, defendants again contend that reversal of the fraud verdicts is required because there was no substantial evidence that Whiteley relied on any false promise or misrepresentation by defendants. (Whiteley I, supra, 117 Cal.App.4th at pp. 677-682.)[6] Here, defendants contend plaintiffs showing of reliance was insufficient because: (1) none of the statements Whiteley heard involved a promise; (2) there was no evidence that any false promise or misrepresentation caused Whiteley to smoke; and (3) Whiteleys testimony was too vague to support a misrepresentation claim. Defendants do not argue that Whiteleys reliance, if any, was not reasonable.

A. Law of the Case

Plaintiffs contend the evidence presented on retrial below was substantially the same as that presented in Whiteley I, and that our holding that substantial evidence supported the finding of justifiable reliance in Whiteley I is law of the case and binding on this appeal. Where the sufficiency of the evidence to sustain the judgment depends on the probative value or effect of the evidence itself (as distinguished from the credibility of witnesses), and there is no substantial difference in the evidence in the retrial, the former decision is law of the case. [Citations.] [] The evidence produced on a retrial is seldom identical to that in the first trial, and the doctrine will be applied notwithstanding insubstantial changes, e.g., where the new evidence is merely cumulative or of such slight probative value as to have no effect on an already existing conflict . . . . Additional evidence merely cumulative to evidence of the same class given on the first appeal will not carry a question outside the operation of the rule as to the law of the case, but to successfully escape the rule a new and substantial fact must be brought into the case on the subsequent appeal. ([Estate of Baird (1924) 193 Cal. 225, 244].) (9 Witkin, Cal. Procedure, supra, Appeal,  470, p. 528; see Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 304.)

Plaintiffs are arguably correct. The vast majority of evidence material to the issue of Whiteleys reliance was substantially the same in the retrial below as in Whiteley I, supra, 117 Cal.App.4th 635. This evidence included Whiteleys deposition testimony and her husband Leonards testimony concerning what they saw, heard, and thought about the health risks of cigarette smoking; testimony of Whiteleys father, mother and high school dean about the information environment in which she began and continued smoking; the testimony of plaintiffs experts Pollay and Benowitz regarding the information environment, the addictive properties of nicotine, and the behavior of addicted smokers; and testimony regarding defendants conduct during the non-immunity period.

Two things militate against our relying upon law of the case here:

First, contrary to plaintiffs assertion, our determination that substantial evidence supported the findings of justifiable reliance by the jury in Whiteley I was based on the entire record presented in that case, including evidence that was not admitted on retrial below. Specifically, our discussion of the issue in Whiteley I, supra, 117 Cal.App.4th 635,references evidence of target marketing to youth, her viewing of billboards where everybody looked healthy, white teeth, suntans, having fun,  evidence related to the manufacture and marketing of light cigarettes, and Whiteleys comments that she had switched to lights in part because they had less tar and that they were healthier than a full-flavored cigarette. (Id. at pp. 679-680.) Our opinion in Whiteley I, also referenced the  Frank Statement to Cigarette Smokers  made by the cigarette manufacturers in 1954, which was not admitted into evidence in the retrial. (Id. at p. 645.) Although less relevant to the issue of reliance, other evidence relating to defendants conduct during the immunity period from 1988 to 1998 was also omitted from the retrial. (See Whiteley I, at pp. 657-665.)

Second, issues of credibilityespecially Whiteleys credibilitywere important to the reliance determination. It is well established that where the sufficiency of the evidence depends on the credibility of witnesses, the former decision may not be law of the case, although the evidence is substantially the same. (9 Witkin, Cal. Procedure, supra, Appeal,  471, p. 529, citing Wallace v. Sisson (1896) 114 Cal. 42, 45.) Where the fact . . . to be decided depends upon the credit to be given to the witnesses whose testimony is received, or the weight to which their testimony is entitled, or the inferences of fact that are to be drawn from the evidence, the sufficiency of the evidence to justify the decision must be determined by the tribunal before which it is presented, and is not controlled by an opinion of an appellate court that similar evidence at a former trial of the cause was insufficient to justify a similar decision. (Wallace v. Sisson, at p. 45; accord, Eltolad Music, Inc. v. April Music, Inc. (1983) 139 Cal.App.3d 697, 704.)

Notwithstanding the inapplicability of the doctrine of law of the case to the sufficiency of the evidence question, our examination of the record on this retrial convinces us that there was substantial evidence to support the jurys finding of reliance.

B. Standard of Review

As we recognized in Whiteley I, supra, 117 Cal.App.4th at page 678,  [W]e are bound by the rule that 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.] (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.) Defendants raising a claim of insufficiency of the evidence assume a daunting burden. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329; accord, Whiteley I, at p. 678.)

 Actual reliance occurs when a misrepresentation is  an immediate cause of [a plaintiffs] conduct, which alters his legal relations,  and when, absent such representation,  he would not, in all reasonable probability, have entered into the contract or other transaction.  [Citations.] It is not . . . necessary that [a plaintiffs] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. . . . It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision. (Rest.2d Torts,  546, com. b, p. 103.) (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 976-977.) (Whiteley I, supra, 117 Cal.App.4th at p. 678; accord, In re Tobacco II Cases (2009) 46 Cal.4th 298, 326-327.)

Defendants ignore the substantial factor portion of the above standard, instead arguing that there was no evidence Whiteley actually heard, either directly or indirectly, specific misrepresentations or false promises. This argument, that there was insufficient evidence that Whiteley heard any of the specific misrepresentations or false promises that defendants or their agents concededly made, is a variation of the reliance argument defendants made in Whiteley I. There, defendants challenged the sufficiency of the evidence of Whiteleys reliance on the ground that the evidence did not show that Whiteley heard any specific misrepresentation or false promise made by either defendant. (Whiteley I, supra, 117 Cal.App.4th at p. 680.) In Whiteley I, defendants asserted  it [was] not enough that the plaintiff heard the alleged misrepresentation at some unidentified time from some unidentified source. Instead, the plaintiff must identify a specific misrepresentation that was actually communicated to the plaintiff (directly or indirectly).  (Ibid.) We rejected that con