Berger v. Philip Morris United States, Inc.

• Decision Date: 23 April 2015
• Docket Number: Case No. 3:09–cv–14157.
• Citation: 101 F.Supp.3d 1228
• Parties: Judith BERGER, Plaintiff, v. PHILIP MORRIS USA, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

101 F.Supp.3d 1228

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 April 23, 2015.

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, Todd A. Walburg, Robert J. Nelson, Sarah R. London, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, Kenneth S. Byrd, John T. Spragens, Kathryn E. Barnett, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, TN, Lance V. Oliver, Motley Rice, LLC, Mount Pleasant, SC, for Plaintiff.

Bonnie C. Daboll, Terri L. Parker, James B. Murphy, Jr., Shook, Hardy & Bacon, LLP, Tampa, FL, Dale M. Johnson, II, Mary Katherine Gates Calderon, Robert D. Homolka, Shook, Hardy & Bacon, LLP, Kansas City, MO, Judith Bernstein–Gaeta, M. Sean Laane, Maura McGonigle, Arnold & Porter, LLP, Washington, DC, Keri L. Arnold, Arnold & Porter, LLP, New York, NY, Dana G. Bradford, II, Smith, Gambrell & Russell, LLP, Jacksonville, FL, Giselle Gonzalez Manseur, Kelly Anne Luther, Maria Helena Ruiz, Kasowitz, Benson, Torres & Friedman, LLP, Mark J. Heise, Boies, Schiller & Flexner, LLP, Miami, FL, Joshua Reuben Brown, Greenberg Traurig, LLP, Orlando, FL, for Defendant.

ORDER

CARR, District Judge.¹

This is an “Engle-progeny”²suit by Plaintiff Judith Berger (Mrs. Berger), a former smoker of cigarettes, against the manufacturer of those cigarettes, Defendant Philip Morris USA, Inc. (PMUSA). Following trial, the jury returned a compensatory damages verdict of $6.25 million (with a 40% comparative fault finding) and an award of $20,000,760.14 in punitive damages based upon Mrs. Berger's fraud and conspiracy claims. (Doc. 92).

Pending is PMUSA's Renewed Motion for Judgment as a Matter of Law on Plaintiff's Fraudulent Concealment and Conspiracy Claims or, in the Alternative, Motion for New Trial and Incorporated Memorandum of Law (Doc. 136), to which Mrs. Berger responded (Doc. 147) and PMUSA replied. (Doc. 149). PMUSA additionally filed supplemental authority in support of its motion (Doc. 153), and also requested leave to submit supplemental briefing. (Doc. 154).

For the reasons that follow, I grant PMUSA's motion (Doc. 136) and enter judgment as a matter of law in favor of PMUSA and against Mrs. Berger as to Mrs. Berger's fraudulent concealment and conspiracy to fraudulently conceal claims.

I. Background

Mrs. Berger began smoking in the late 1950s around age thirteen or fourteen. She started because school friends encouraged her to do so, and she “didn't want to be the only one not to do it.”³Her twin sister also began to smoke at about the same time. When asked whether peer pressure was the only reason Mrs. Berger started smoking, Mrs. Berger replied: “Yeah. I would say yes.” According to Mrs. Berger, it was her friend, Anita Russo, who gave her the first cigarette. Russo, on seeing that Mrs. Berger was not inhaling, as everyone else was, convinced her to start inhaling as she smoked. Mrs. Berger recalled:

Q. And, in fact, you blame Anita Russo, somewhat, for your decision to start smoking; correct?

A. I blame her for teaching me. I was quite happy just puffing it out.

Q. Okay. You blame her for teaching you how to inhale?

A. Inhale, right.

Q. And Mrs. Berger, if Anita Russo hadn't taught you how to inhale that smoke, you believe that you would have ended up like your sister Ann, hating smoking; right?

A. I think so.

Mrs. Berger was smoking daily by age sixteen, and by the time she turned twenty, she was smoking a pack and a half per day.

Beginning when and as she did, as a young and impressionable teenager induced by friends, the evidence at trial showed Mrs. Berger to be entirely typical of those whom tobacco companies deliberately targeted as prospective customers. Tobacco companies knew they needed to gain new customers when they were young, as those who were non-smokers by their twenties would, in all likelihood, never become their customers. Tobacco companies consequently deliberately targeted persons of school and college age to begin smoking, knowing that, as a result of the addictive powers of their product, and the oft irresistible influence of peer pressure on pupils and students, they would acquire new, life-long consumers of their products.⁴

Though Mrs. Berger tried to stop a couple of times during her lifetime, she was unsuccessful until her twin sister became fatally ill from congestive obstructive pulmonary disease(COPD). Nursing her sister, from whom Mrs. Berger had only been separated for any period of time during her honeymoon, while her sister suffered the agonies of dying from the condition brought an end to Mrs. Berger's smoking in 1988. By then, Mrs. Berger had smoked cigarettes for just short of forty years, having smoked Marlboros and Parliaments for twenty-five of those years.

By the '90s, however, Mrs. Berger experienced the symptoms of COPD. Her condition has taken the predictable course. At trial, she was wheelchair bound and tethered to an oxygen tank. Her life expectancy was estimated at trial to be three to five years.

At issue now is the sufficiency of the evidence to sustain Mrs. Berger's fraudulent concealment and conspiracy to fraudulently conceal claims; specifically, whether sufficient evidence exists as to Mrs. Berger's detrimental reliance on the fraudulent conduct in which PMUSA and its tobacco company cohorts jointly engaged for decades before finally acknowledging that nicotine is addictive and that smoking causes various diseases, including COPD.

In summary, the evidence at trial persuasively showed that that fraudulent conduct involved, inter alia:

• Concealing from both the public and scientific community the knowledge that PMUSA and its co-conspirator tobacco companies had that:

• Nicotine was addictive;

• Cigarettes containing nicotine caused fatal disease, including lung diseases;

• Filter tip cigarettes were more addictive and more hazardous than non-filter tip cigarettes;

• On publication of the Surgeon General's Report of 1964 and for an extended period of time thereafter, deliberately and knowingly making materially false statements (and doing so jointly and collusively with the other tobacco companies) intended to encourage people to smoke, and to continue smoking, and expecting and intending that those false statements would allay fears and increase cigarette consumption, and thus tobacco company profits, that:

• Debunked, discredited, denied, downplayed, and cast doubt on the accuracy and integrity of the authors of and underlying research supporting the Surgeon General's Report and subsequent Reports and warnings about the health hazards of smoking, and, in general, seeking to defame, undercut, and marginalize the work of the Surgeon General and other organizations, such as the American Cancer Society, that sought to increase public awareness about the deleterious and deadly consequences of smoking;

• Presented, along with its tobacco company co-conspirators, perjurious testimony to Congress;

• The scientific evidence as to whether nicotine was addictive was inconclusive;

• Experts disagreed as to the addictive properties of nicotine;

• The scientific evidence as to the health hazards of smoking were inconclusive;

• Experts disagreed as to the health hazards of smoking;

• Engaging in a protracted public campaign that included, inter alia,saturation advertising and broadcast interviews with tobacco company spokesmen/apologists intended to communicate and appear to confirm the truthfulness of the above-noted materially false, deceptive, and misleading statements;

• Deliberately using false and deceptive multi-media saturation advertising to cause smokers concerned about the risks of smoking to switch to filter tip cigarettes and ‘light’ products because they were less harmful to health than traditional cigarettes; doing so knowing that such “more healthful” products were, in fact, more addictive and dangerous than unfiltered cigarettes.

In light of the foregoing, there was ample evidence that the tobacco companies engaged in a massive, multi-faceted, protracted, and effective disinformation campaign. Mrs. Berger's counsel aptly demonstrated the effect of that campaign in his closing argument, to wit: “[W]hat we've got here and what Philip Morris and this industry is doing is worse because there's the truck driver, foot on the gas, about to go, looks out the window at the guy about to cross the street and goes, come on, come on; that's the conduct we have.”

Proof of the foregoing fraudulent conduct and its likely impact on the tobacco companies' targets, as extensive as it was, is not, however, enough, standing alone, to uphold the jury's finding in this or any other Engle-progeny case. Mrs. Berger had to prove that she relied on what the tobacco companies were saying and doing, by both affirmation and concealment, as she began and/or continued to smoke.

Mrs. Berger's testimony clearly indicates that she was not insulated from or oblivious to the tobacco companies' disinformation. Her testimony shows that she was cognizant of representations made and messages broadcast by PMUSA and other tobacco companies. For example:

• She answered “[y]es” when asked whether she remembered cigarette advertising, and testified to seeing billboards, advertisements in trains, on buses, and on TV as a youth and/or in high school;

• She remembered the Marlboro Man as “a good looking guy on a horse smoking,” portraying the image “[t]hat [smoking] wasn't bad ... it was okay”;

• She recalled famous people smoking, including “[m]ostly all” movie stars;

• When asked whether she knew the health hazards of cigarette smoking at age 16 in 1960, she replied: “[n]o. They were smoking in the movies, restaurants. No.” It was, as she recalled: “like nothing ... like having a hamburger or—I don't know how to

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