83 So.3d 1002 (Fla.App. 2 Dist. 2012), 2D10-3236, Philip Morris USA, Inc. v. Douglas

Docket Nº:2D10-3236.
Citation:83 So.3d 1002, 37 Fla. L. Weekly D 764
Opinion Judge:DAVIS, Judge.
Party Name:PHILIP MORRIS USA, INC.; R.J. Reynolds Tobacco Company; and Liggett Group, LLC, Appellants, v. James L. DOUGLAS, as Personal Representative for the Estate of Charlotte M. Douglas, Appellee.
Attorney:William P. Geraghty of Shook, Hardy & Bacon, LLP, Miami, and Gary L. Sasso, Carlton Fields, Tampa, for Appellant Philip Morris USA, Inc. Gregory G. Katsas, Jones Day, Washington, D.C., for Appellant R.J. Reynolds Tobacco Company. Karen H. Curtis of Clarke Silverglate & Campbell, P.A., Miami, for ...
Judge Panel:WHATLEY, J., Concurs. ALTENBERND, J. Concurs with opinion. ALTENBERND, Judge, Concurring.
Case Date:March 30, 2012
Court:Florida Court of Appeals, Second District
 
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Page 1002

83 So.3d 1002 (Fla.App. 2 Dist. 2012)

37 Fla. L. Weekly D 764

PHILIP MORRIS USA, INC.; R.J. Reynolds Tobacco Company; and Liggett Group, LLC, Appellants,

v.

James L. DOUGLAS, as Personal Representative for the Estate of Charlotte M. Douglas, Appellee.

No. 2D10-3236.

Florida Court of Appeal, Second District.

March 30, 2012

Page 1003

William P. Geraghty of Shook, Hardy & Bacon, LLP, Miami, and Gary L. Sasso, Carlton Fields, Tampa, for Appellant Philip Morris USA, Inc.

Gregory G. Katsas, Jones Day, Washington, D.C., for Appellant R.J. Reynolds Tobacco Company.

Karen H. Curtis of Clarke Silverglate & Campbell, P.A., Miami, for Appellant Liggett Group, LLC.

Steven L. Brannock, Celene H. Humphries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Howard M. Acosta of Law Offices of Howard M. Acosta, St. Petersburg, for Appellee.

DAVIS, Judge.

Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and Liggett Group, LLC (the Tobacco Companies), challenge the final judgment entered after jury trial which awarded James L. Douglas, as the personal representative of the Estate of Charlotte M. Douglas, $2.5 million as damages on claims based on Mrs. Douglas' smoking-related death.1

Mrs. Douglas began smoking cigarettes in the mid-1960s as a teen. The complaint alleged that it was her addiction to cigarettes manufactured by the Tobacco Companies that caused her to develop chronic obstructive pulmonary disease (COPD) and lung cancer, which ultimately led to her death in 2008 at the age of sixty-two.

Mr. Douglas' third amended complaint alleged claims for strict liability, negligence, breach of express and implied warranty, fraudulent concealment, and conspiracy to fraudulently conceal. Mr. Douglas originally sought both compensatory and punitive damages, but he dismissed his claim for punitive damages before trial. He did not submit a verdict form on the negligence, breach of warranty, and conspiracy to fraudulently conceal counts, and the jury did not decide those issues. The jury did find each of the named defendants strictly liable for Mrs. Douglas' death, apportioning fault as follows: 50% to Mrs. Douglas, 18% to Philip Morris, 5% to R.J. Reynolds, and 27% to Liggett. Additionally, the jury found against Mr. Douglas on the issue of Mrs. Douglas' detrimental reliance on concealment or omissions by the Tobacco Companies.

The crux of this appeal is whether the trial court erred in the application of the findings reached by a jury and affirmed by the Florida Supreme Court in the class action case Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) ( Engle III ).2

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Because we conclude that it did not, we affirm the trial court's final judgment. However, because this issue is one with wide-ranging impact, we certify a question of great public importance.

In the Engle cases, the trial court certified a class made up of " [a]ll Florida citizens and residents" " and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine." 3 Id. at 1256. At trial the jury made specific findings regarding the conduct of the several tobacco companies named as defendants.4 The Florida Supreme Court affirmed the class certification, as well as the jury's findings (1) that smoking cigarettes causes certain named diseases; 5 (2) " that nicotine in cigarettes is addictive" ; (3) that the Tobacco Companies " placed cigarettes on the market that were defective and unreasonably dangerous" ; (4) that the Tobacco Companies " concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both" ; (5) that the Tobacco Companies " agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment" ; (6) that all the Tobacco Companies " sold or supplied cigarettes that were defective" ; (7) that all the Tobacco Companies " sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by" the Tobacco Companies; and (8) that all the Tobacco Companies " were negligent." Id. at 1276-77. These findings are referred to as the " Phase I findings." Id. at 1254. The issue in this appeal is how the Phase I findings are to be used in the subsequent trials for damages brought by the individual class members.

In the instant case, the trial court advised the jury that the first issue for its consideration was whether Mrs. Douglas was a member of the class. The jury was instructed as follows:

Class members are cigarette smokers who on or before November 21, 1996, suffered from a disease or medical condition legally caused by an addiction to cigarettes— to smoking cigarettes containing nicotine.

....

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An addiction to smoking cigarettes containing nicotine is a legal cause of a disease or medical condition if it directly and in natural and continuous sequence produces or contributes substantially to producing such disease or medical condition so that it can reasonably be said that but for an addiction to cigarettes containing nicotine, such disease or medical condition would not have been suffered.

The trial court also provided the jury with a concurring cause instruction. 6 As to this first issue, the jury found that Mrs. Douglas was a member of the class, and the Tobacco Companies do not challenge that finding on appeal.

The trial court further instructed the jury that if, in fact, it did determine that Mrs. Douglas was a member of the class, then it was to accept the eight Phase I Engle findings as proven fact. As part of that instruction, the trial court spelled out for the jury each of the eight Phase I findings. The trial court also advised the jury that the Tobacco Companies " have admitted that Charlotte Douglas had chronic obstructive pulmonary disease, COPD, and lung cancer caused by cigarette smoking and that lung cancer caused her death."

The trial court further instructed:

The second issue for your determination ... is whether smoking cigarettes manufactured and sold by one or more of the defendants was a legal cause of the death of Decedent, Charlotte Douglas. If so, you should also determine as to each defendant whether or not that defendant's cigarettes were a legal cause of the death of the decedent, Charlotte Douglas.

The trial court then advised that

[t]he smoking of defendants' cigarettes is a legal cause of loss, injury, or damage to [Mrs. Douglas] if it directly and in natural continuous sequence produce[d] or contribute[d] substantially to producing such loss, injury, or damage so that it can reasonably be said that but for smoking defendants' cigarettes, the loss, injury, or damage would not have occurred.

The verdict form included the following question: " Was smoking cigarettes manufactured by one or more of the Defendants a legal cause of CHARLOTTE DOUGLAS' death?" The jury responded affirmatively. The verdict form determined that each of the three named defendant Tobacco Companies manufactured a cigarette that was the legal cause of Mrs. Douglas' death.

The Tobacco Companies argue on appeal that the trial court erred in giving instructions that misinterpret the intent of the Florida Supreme Court's...

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