Berger v. Philip Morris USA, Inc.

• Citation: 185 F.Supp.3d 1324
• Decision Date: 05 May 2016
• Docket Number: Case No. 3:09-cv-14157
• Parties: Judith Berger, Plaintiff, v. Philip Morris USA, Inc., Defendant.
• Court: U.S. District Court — Middle District of Florida

185 F.Supp.3d 1324

Judith Berger, Plaintiff,

v.Philip Morris USA, Inc., Defendant.

Case No. 3:09-cv-14157

United States District Court, M.D. Florida, Jacksonville Division .

Signed May 5, 2016

Charlie Easa Farah, Jr., Farah & Farah, PA, Janna B. McNicholas, Norwood Sherman Wilner, Richard J. Lantinberg, Stephanie J. Hartley, The Wilner Firm, PA, Jacksonville, FL, Elizabeth J. Cabraser, Jerome Mayer-Cantu, Martin D. Quinones, Richard M. Heimann, Robert J. Nelson, Todd A. Walburg, Sarah R. London, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, Donald A. Migliori, Elizabeth S. Smith, Elizabeth C. Ward, Frederick C. Baker, James W. Ledlie, Lance V. Oliver, Lisa M. Saltzburg, Nathan D. Finch, Joseph F. Rice, Patrick Graham Maiden, Rebecca M. Deupree, Robert T. Haefele, Sara Orpha Couch, Motley Rice, LLC, Mount Pleasant, SC, Kenneth S. Byrd, John T. Spragens, Kathryn E. Barnett, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, TN, Mathew Jasinski, Michael J. Pendell, Motley Rice, LLC, Hartford, CT, Celene Humphries, Maegen Peek Luka, Steven L. Brannock, Thomas J. Seider, Brannock & Humphries, PA, Tampa, FL, for Plaintiff.

Bonnie C. Daboll, James B. Murphy, Jr., Terri L. Parker, Shook, Hardy & Bacon, LLP, Tampa, FL, Dale M. Johnson, II, Mary Katherine Gates Calderon, Robert D. Homolka, Shook, Hardy & Bacon, LLP, Kansas City, MO, Dana G. Bradford, II, Smith, Gambrell & Russell, LLP, Jacksonville, FL, Geoffrey Jonathan Michael, Judith Bernstein-Gaeta, M. Sean Laane, Maura McGonigle, Arnold & Porter, LLP, Washington, DC, Joshua Reuben Brown, Greenberg Traurig, LLP, Orlando, FL, Mark J. Heise, Boies, Schiller & Flexner, LLP, Miami, FL, Keri L. Arnold, Arnold & Porter, LLP, New York, NY, for Defendant.

ORDER

Carr, Senior United States District Judge¹

This is an " Engle -progeny"² lawsuit by Plaintiff Judith Berger ("Mrs. Berger"), a former smoker of cigarettes, against the manufacturer of those cigarettes, Defendant Philip Morris USA, Inc. ("PM USA"). Mrs. Berger, who now suffers from advanced chronic obstructive pulmonary disorder

("COPD"), alleged that PM USA was liable to her under theories of negligence, strict liability, fraudulent concealment, and conspiracy to conceal. Following a trial, the jury returned a verdict for Mrs. Berger on each of these four claims, and awarded compensatory damages in the amount of $6.25 million (with a 40% comparative fault finding).³ (Doc. 92). Later, the jury awarded $20,760,000.14 in punitive damages based on Mrs. Berger's fraudulent concealment and conspiracy-to-conceal claims.⁴ However, I subsequently granted PM USA judgment as a matter of law with respect to the fraudulent concealment and conspiracy-to-conceal claims, because the evidence failed to establish that Mrs. Berger had relied on PM USA's concealments and misrepresentations about the hazards of cigarette-smoking. (Doc. 155). In the same order, I also vacated the $20.7 million punitive damages award. (Id. at 27, ¶ 2).⁵

Now pending is PM USA's Renewed Motion for Judgment as a Matter of Law on All Claims (Doc. 135, "Motion"), to which Mrs. Berger has responded (Doc. 146, "Response"). To some extent, PM USA's Motion is moot in light of my previous order granting judgment as a matter of law with respect to the fraudulent concealment and conspiracy-to-conceal claims. Otherwise, I deny PM USA's Motion for the reasons that follow. Because PM USA acknowledges that I have already rejected many of its arguments (Doc. 135 at 1), I discuss most fully PM USA's argument that federal law impliedly preempts Mrs. Berger's negligence and strict liability claims.

I. Background

The facts, except as relevant to the negligence and strict liability claims, need no recounting, as I covered them in detail in my order granting judgment as a matter of law in PM USA's favor (Doc. 55, at 2–6), and are familiar to the parties.

Although the background of the larger Engle saga is important, I merely incorporate the history of the Engle litigation history as the Eleventh Circuit described it in Graham v. R.J. Reynolds Tobacco Co. , 782 F.3d 1261, 1265–67 (11th Cir.2015), vacated 811 F.3d 434 (11th Cir.2016), Walker v. R.J. Reynolds Tobacco Co. , 734 F.3d 1278, 1281–86 (11th Cir.2013), and Philip Morris USA, Inc. v. Douglas , 110 So.3d 419, 422–25 (Fla.2013). I therefore merely summarize only relevant portions in this order.

The Florida Supreme Court approved giving the following findings from the " Engle Phase I" trial "res judicata " effect:

(i) [T]hat smoking cigarettes causes certain named diseases including COPD and lung cancer

; (ii) that nicotine in cigarettes is addictive; (iii) that the Engle defendants placed cigarettes on the market that were defective and unreasonably dangerous; (iv) that the Engle defendants 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; (v) that the Engle defendants 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; (vi) that all of the Engle defendants sold or supplied cigarettes that were defective; (vii) that all of the Engle defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants; and (viii) that all of the Engle defendants were negligent.

Douglas, 110 So.3d at 424–25 (alterations omitted) (footnote omitted) (quotation marks omitted) (quoting Engle III, 945 So.2d at 1276–77 ).

The Florida Supreme Court has clarified that the Phase I findings conclusively established the " ‘conduct elements' of plaintiffs' tort claims—duty, breach, and ‘general causation[.]’ "⁶ Graham , 782 F.3d at 1270–71 (quoting Douglas , 110 So.3d at 428 ). Because the Phase I findings established the "conduct" and "defect" elements of the class members' negligence and strict liability claims, the only issues for the parties to litigate in individual cases were "(i) membership in the Engle class; (ii) individual causation, i.e., that addiction to smoking the Engle defendants' cigarettes containing nicotine was a legal cause of the injuries alleged; and (iii) damages." Douglas , 110 So.3d at 430 (citations omitted).

The tobacco companies have objected to this procedure, arguing that allowing the Phase I findings to establish the conduct and defect elements of the plaintiffs' product liability claims violates due process. See Walker , 734 F.3d 1278, supra . The Eleventh Circuit has rejected that argument, however. Id. at 1288–89 (observing that "R.J. Reynolds had a full and fair opportunity to litigate the issues of common liability in Phase I," and reasoning that no court, including the Supreme Court, has yet to hold that the Due Process Clause entitles a party "to the application of the traditional law of issue preclusion.").

Thus, in this case, my jury instructions followed the post-Walker regime of treating the Engle findings as conclusively establishing the defect and conduct elements of Mrs. Berger's strict liability and negligence claims. (Doc. 94 at 19–24, 26). I instructed the jury that Mrs. Berger was entitled to benefit from the Engle Phase I findings if she proved: (1) her COPD manifested on or before November 21, 1996; (2) she was addicted to cigarettes containing nicotine; and (3) her addiction was a legal cause of her COPD. (Id. at 19). I instructed the jury that if it made each of those findings, then it was to presume, among other things, that: (1) PM USA was negligent; (2) PM USA placed cigarettes on the market that were defective or unreasonably dangerous; (3) nicotine in cigarettes is addictive; and (4) smoking cigarettes causes COPD. (Id. at 23).

The jury determined that Mrs. Berger's COPD manifested on or before November 21, 1996, she was addicted to cigarettes, and her addiction was a legal cause of her COPD. (Doc. 92). The jury awarded compensatory damages as noted earlier, and it apportioned 40% of the fault to Mrs. Berger and 60% of the fault to PM USA. (Id. ).

Following the verdict, PM USA renewed its pre-submission motion for judgment as a matter of law on all claims. (See Doc. 85, Doc. 135).

II. Standard

The standard for granting a renewed motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) is the same as the standard for granting the pre-submission motion under Rule 50(a). Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1227 (11th Cir.2007) (citation omitted). Under that standard, "a district court's proper analysis is squarely and narrowly focused on the sufficiency of evidence." Id. A court "should render judgment as a matter of law when there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir.2004). "The issue is not whether the evidence was sufficient for [the losing party] to have won, but whether the evidence was sufficient for it to have lost." Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1265 (11th Cir.2008).

While I review all evidence of record, I am to draw all reasonable inferences in favor of the nonmoving party. I "must disregard all evidence favorable to the moving party that the jury is not required to believe ... [giving] credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citation and quotations omitted).

Moreover, I may not make credibility determinations or weigh the evidence. Id. at 150, 120 S.Ct. 2097 ; Beckwith v. City of Daytona Beach...