Cote v. Philip Morris USA, Inc.

• Decision Date: 13 September 2019
• Docket Number: Case No.: 3:09-cv-14157
• Citation: 400 F.Supp.3d 1295
• Parties: Bernard COTE, as Personal Representative of the Estate of Judith Berger, Plaintiff, v. PHILIP MORRIS USA, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

400 F.Supp.3d 1295

Bernard COTE, as Personal Representative of the Estate of Judith Berger, Plaintiff,

v.PHILIP MORRIS USA, INC., Defendant.

Case No.: 3:09-cv-14157

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

Filed September 13, 2019

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

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

ORDER

Carr, D.J.¹

This " Engle -progeny"² case is before me, once more, on a trio of post-trial motions filed by the Defendant, Philip Morris USA, Inc. The first is Philip Morris's "Renewed Motion for New Trial or in the Alternative Remittitur of the Punitive Damages Award." (Doc. 210). The second is Philip Morris's "Renewed Motion for Judgment as a Matter of Law on Plaintiff's Punitive Damages Claims." (Doc. 211). The third is Philip Morris's "Renewed Motion to Amend the Judgment to Apply Credit for Guaranteed Sum in Accordance with Stipulation." (Doc. 212). Plaintiff Bernard Cote, as the personal representative of the estate of Judith Berger, has responded to each of the motions. (Docs. 213, 214, 215). For the reasons below, I will deny each of them.

I. Background

The original plaintiff in this case, Mrs. Berger, was a former cigarette smoker who developed chronic obstructive pulmonary disorder ("COPD") after decades of smoking. On October 3, 2013, she filed an Amended Complaint against several tobacco companies, including Philip Morris, alleging that their cigarettes were responsible for her COPD. (Doc. 5, Amended Complaint). Mrs. Berger sued the defendants under theories of negligence, strict liability, fraudulent concealment, and conspiracy to conceal.

The case proceeded to a nine-day bifurcated jury trial against Philip Morris. After the first phase of the trial, the jury returned a verdict for Mrs. Berger on each of her theories of liability. (Doc. 92). The jury awarded Mrs. Berger $6.25 million in compensatory damages, though it also found that she was 40% comparatively at fault. (Id. ).³ The jury further "f[ound] by clear and convincing evidence that," based on its verdict for Mrs. Berger on her fraudulent concealment and conspiracy-to-conceal claims, "punitive damages [we]re warranted against Philip Morris under the circumstances of this case." (Id. at 4).⁴ Thus, the case went to a second phase of trial where the jury decided how much in punitive damages to award.⁵ Following this second phase, the jury returned a punitive damages verdict of $20,760,000.14. (Doc. 100).

After trial, I denied Philip Morris's motion for remittitur of the damages award and a new trial based on improper closing arguments. (Doc. 197). I also denied Philip Morris's motion for judgment as a matter of law on all claims, in which Philip Morris asserted due process and federal preemption arguments. (Doc. 196). However, I granted Philip Morris judgment as a matter of law on the fraudulent concealment and conspiracy-to-conceal claims for lack of proof. (Doc. 155). Consequently, I vacated the $20.7 million punitive damage award. (Id. at 27, ¶ 2).

On appeal, the Eleventh Circuit Court of Appeals affirmed the denial of Philip Morris's motion for remittitur and a new trial based on improper arguments, as well as the rejection of Philip Morris's due process and federal preemption arguments. Cote v. R.J. Reynolds Tobacco Co. , 909 F.3d 1094, 1099, 1109 (11th Cir. 2018). But the Eleventh Circuit reversed this Court's order granting Philip Morris judgment as a matter of law on Mrs. Berger's intentional tort claims. Id. at 1099, 1109. Thus, the Eleventh Circuit remanded the case with instructions to enter "judgment in Plaintiff's favor on claims for fraudulent concealment and conspiracy to fraudulently conceal and [to reinstate] the jury's corresponding punitive damages award." Id. at 1110.

While the case was on appeal, Mrs. Berger passed away and Bernard Cote, as the representative of Mrs. Berger's estate, was substituted as the plaintiff. On January 16, 2019, I entered an amended judgment conforming with the Eleventh Circuit's mandate. (Doc. 209). About a month later, Philip Morris filed the instant trio of motions.

II. Renewed Motion for New Trial or in the Alternative Remittitur of the Punitive Damages Award⁶

Philip Morris argues that I should order a new trial because "[t]he punitive damages award in this case is so grossly excessive and unsupported by the evidence that it could only have been the product of passion or prejudice." (Doc. 210 at 14). Philip Morris points to several lines from Plaintiff's closing argument during the first phase of trial, which Philip Morris claims inflamed the passions and prejudice of the jury. (Id. at 15-16) (citing Trial Tr. at 2468-71). According to Philip Morris, the allegedly inflammatory comments infected the entire trial, not just the punitive damage verdict, such that a new trial is required on all issues. (Id. at 17).

Alternatively, Philip Morris argues that "[t]he punitive damages award ... should be vacated, or at minimum reduced to no more than $1 million for three reasons." (Id. at 6; see also id. at 17). First, Philip Morris argues that the punitive damage award is excessive, in violation of the Fourteenth Amendment's Due Process Clause, because "a lesser amount would suffice to serve the State's legitimate interest in punishment and deterrence." ( Id. at 6). Philip Morris contends that no punitive award is necessary, due to Philip Morris's changed conduct, changed personnel and shareholders, and broad legal restraints on tobacco companies that will purportedly prevent repetition of the conduct at issue in the Engle cases. (Id. at 6-7, 7-10). Philip Morris also argues that I should consider the cumulative effect of all punitive damage awards, reasoning that $20 million is excessive because if all 2,700 Engle plaintiffs received that much in punitive damages, the total would exceed $50 billion. (Id. at 10). Second, Philip Morris argues that "the award here is inconsistent with the Supreme Court's guidance that punitive damages should not exceed, and in appropriate cases may be less than, compensatory damages where the jury has returned a substantial compensatory damages award." (Id. at 7; id. at 11-13). Third, Philip Morris argues that "there is an impermissible risk that the punitive award in this case reflects punishment for harm to persons other than Plaintiff." (Id. at 7; see also id. at 13).

A. Standard

A court may grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A).

A losing party may ... move for a new trial under Rule 59 on the grounds that "the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair ... and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury."

McGinnis v. Am. Home Mortg. Servicing, Inc. , 817 F.3d 1241, 1254 (11th Cir. 2016) (quoting Montgomery Ward & Co. v. Duncan , 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940) ). Thus, under Rule 59(a), a district court may grant a new trial "if in [the court's] opinion, the verdict is against the clear weight of the evidence ... or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Id. (quoting Hewitt v. B.F. Goodrich Co. , 732 F.2d 1554, 1556 (11th Cir. 1984) ). A district court's decision whether to grant or deny a motion for a new trial is reviewed for abuse of discretion. Middlebrooks v. Hillcrest Foods, Inc. , 256 F.3d 1241, 1247 (11th Cir. 2001). However, a district court's decision whether the award of punitive damages violates due process is reviewed de novo. Goldsmith v. Bagby Elevator Co., Inc. , 513 F.3d 1261, 1275-76 (11th Cir. 2008) (citing Cooper Indus., Inc. v. Leatherman Tool Grp., Inc. , 532 U.S. 424, 443, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) ).

B. This Court Will Not Grant a New Trial

Philip Morris argues that a new trial on all issues is required because Plaintiff's closing statements in the first phase of the trial inflamed the jury's passions. (Doc. 210 at 14-17). Specifically, Philip Morris argues that Plaintiff's closing...