In Whiteley v. Phillip Morris, Inc. (2004) 117 Cal.App.4th 635, a cigarette smoker sued tobacco companies and won a verdict on some fraud and negligence claims. (Whiteley, supra, 117 Cal.App.4th at p. 641.) The appellate court held the trial court erred by failing to instruct the jury not to hold the defendant tobacco companies liable for fraud or negligence (or punitive damages) based on conduct during a 10-year-period covered by an immunity statute, unless injury was caused by additives adulterating the product. (Id. at p. 654.) The Whiteley court concluded the error was prejudicial, based on a number of factors, including: (1) there was significant evidence of wrongdoing during the immunity period, and based on the failure to instruct on the immunity statute, defendants were unable to argue that they were shielded from liability for 40 percent of the time the plaintiff's husband smoked; (2) no other instructions lessened the prejudice by informing the jury that it could not base liability for fraud or negligence upon the defendants' conduct during the immunity period or that punitive damages could not be based upon the defendants' conduct during this period; (3) the plaintiff in closing arguments during the liability and punitive damages phases of trial forcefully argued a continuing course of blameworthy conduct by the defendants over the decades, including the immunity period; and (4) the verdicts in favor of the plaintiff were close, nine to three on fraud by intentional misrepresentation, and ten to two finding the defendants acted with oppression, fraud, and malice in connection with the false promise and negligent misrepresentation counts. (Id. at pp. 657-666.)