Cote v. R.J. Reynolds Tobacco Co.

• Decision Date: 26 November 2018
• Docket Number: 16-15957,Nos. 15-15633,s. 15-15633
• Citation: 909 F.3d 1094
• Parties: Bernard COTE, the Personal Representative of the Estate of Judith Berger, Plaintiff–Appellee Cross Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants, Philip Morris USA, Inc., Defendant–Appellant Cross Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

909 F.3d 1094

Bernard COTE, the Personal Representative of the Estate of Judith Berger, Plaintiff–Appellee Cross Appellant,

v.R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants,Philip Morris USA, Inc., Defendant–Appellant Cross Appellee.

Nos. 15-15633

16-15957

United States Court of Appeals, Eleventh Circuit.

November 26, 2018

Frederick C. Baker, Lance V. Oliver, Lisa M. Saltzburg, Sara Orpha Couch, Rebecca M. Deupree, Robert Turner Haefele, James William Ledlie, Patrick Graham Maiden, Joseph F. Rice, Elizabeth S. Smith, Elizabeth C. Ward, Motley Rice, LLC, MT PLEASANT, SC, Louis M. Bograd, Nathan David Finch, Motley Rice, LLC, WASHINGTON, DC, Kenneth S. Byrd, Andrew R. Kaufman, John T. Spragens, Lieff Cabraser Heimann & Bernstein, LLP, NASHVILLE, TN, Elizabeth Joan Cabraser, Richard M. Heimann, Robert J. Nelson, Sarah Robin London, Martin D. Quinones, Todd A. Walburg, Lieff Cabraser Heimann & Bernstein, LLP, SAN FRANCISCO, CA, Samuel Issacharoff, New York University School of Law, NEW YORK, NY, Kathryn E. Barnett, Law Office of Morgan & Morgan, NASHVILLE, TN, Steven L. Brannock, Celene Harrell Humphries, Maegen P. Luka, Thomas J. Seider, Brannock & Humphries, PA, TAMPA, FL, Charles Easa Farah, Jr., Farah & Farah, PA, JACKSONVILLE, FL, Stephanie J. Hartley, Richard Lantinberg, Janna Blasingame McNicholas, Norwood Wilner, The Wilner Firm, PA, JACKSONVILLE, FL, Mathew Jasinski, Michael J. Pendell, Motley Rice, LLC, HARTFORD, CT, Donald Alan Migliori, Motley Rice, LLC, PROVIDENCE, RI, for Plaintiff-Appellee-Cross Appellant.

M. Sean Laane, Geoffrey Michael, Judith Bernstein-Gaeta, Arnold & Porter Kaye Scholer, LLP, WASHINGTON, DC, Ingo Sprie, Jr., Keri Arnold, Arnold & Porter, LLP, NEW YORK, NY, Dana G. Bradford, II, Smith Gambrell & Russell, LLP, JACKSONVILLE, FL, Joshua Reuben Brown, Greenberg Traurig, LLP, ORLANDO, FL, Mary Katherine Gates Calderon, Robert D. Homolka, Dale M. Johnson, II, Shook Hardy & Bacon, LLP, KANSAS CITY, MO, Bonnie C. Daboll, James B. Murphy, Jr., Terri Lynn ParkerShook Hardy & Bacon, LLP, TAMPA, FL, Mark Jurgen Heise, Boies Schiller & Flexner, LLP, MIAMI, FL, Maura McGonigle, Arnold & Porter Kaye Scholer, LLP, WASHINGTON, DC, for Defendant-Appellant-Cross Appellee.

Samuel Issacharoff, New York University School of Law, NEW YORK, NY, Frederick C. Baker, Sara Couch Bryant, Sara Orpha Couch, Rebecca M. Deupree, Robert Turner Haefele, James William Ledlie, Patrick Graham Maiden, Donald Alan Migliori, Lance V. Oliver, Joseph F. Rice, Lisa M. Saltzburg, Elizabeth S. Smith, Elizabeth C. Ward, Motley Rice, LLC, MT PLEASANT, SC, Kathryn E. Barnett, Law Office of Morgan & Morgan, NASHVILLE, TN, Steven L. Brannock, Celene Harrell Humphries, Maegen P. Luka, Thomas J. Seider, Brannock & Humphries, PA, TAMPA, FL, Kenneth S. Byrd, John T. Spragens, Lieff Cabraser Heimann & Bernstein, LLP, NASHVILLE, TN, Elizabeth Joan Cabraser, Richard M. Heimann, Sarah Robin London, Robert J. Nelson, Martin D. Quinones, Todd A. Walburg, Lieff Cabraser Heimann & Bernstein, LLP, SAN FRANCISCO, CA, Charles Easa Farah, Jr., Farah & Farah, PA, JACKSONVILLE, FL, Stephanie J. Hartley, Richard Lantinberg, Janna Blasingame McNicholas, Norwood Wilner, The Wilner Firm, PA, JACKSONVILLE, FL, Mathew Jasinski, Michael J. Pendell, Motley Rice, LLC, HARTFORD, CT, for Plaintiff-Appellant.

Dana G. Bradford, II, Smith Gambrell & Russell, LLP, JACKSONVILLE, FL, Joshua Reuben Brown, Greenberg Traurig, LLP, ORLANDO, FL, Kelly Anne Luther, Giselle Gonzalez Manseur, Maria Helena Ruiz, Kasowitz Benson Torres & Friedman, LLP, MIAMI, FL, James B. Murphy, Jr., Terri Lynn Parker, Shook Hardy & Bacon, LLP, TAMPA, FL, for Defendant-Appellee LIGGETT GROUP, LLC.

M. Sean Laane, Geoffrey Michael, Judith Bernstein-Gaeta, Maura McGonigle, Arnold & Porter Kaye Scholer, LLP, WASHINGTON, DC, Ingo Sprie, Jr., Keri Arnold, Keri Arnold, Arnold & Porter, LLP, NEW YORK, NY 10022-4614, Dana G. Bradford, II, Smith Gambrell & Russell, LLP, JACKSONVILLE, FL, Joshua Reuben Brown, Greenberg Traurig, LLP, ORLANDO, FL, Mary Katherine Gates Calderon, Robert D. Homolka, Dale M. Johnson, II, Shook Hardy & Bacon, LLP, KANSAS CITY, MO, Scott A. Chesin, Mayer Brown, LLP, NEW YORK, NY, Bonnie C. Daboll, James B. Murphy, Jr., Terri Lynn Parker, Shook Hardy & Bacon, LLP, TAMPA, FL, Mark Jurgen Heise, Boies Schiller & Flexner, LLP, MIAMI, FL, for Defendant-Appellee PHILIP MORRIS USA, INC.

Before WILSON and NEWSOM, Circuit Judges, and WRIGHT,^* District Judge.

WRIGHT, District Judge:

Plaintiff Judith Berger ("Mrs. Berger")¹ sued Philip Morris USA, Inc. ("Philip Morris") for intentional and unintentional torts, seeking compensatory and punitive damages for smoking-related injuries. After a nine-day, bifurcated trial, a jury found for Mrs. Berger on all claims and awarded compensatory and punitive damages. Following the verdict, the district court ruled on multiple post-trial motions, and the parties appeal several of those rulings. Philip Morris appeals denial of its motion for a new trial, asserting improper closing argument, and denial of its renewed motion for judgment as a matter of law ("JMOL") on all claims, asserting federal preemption and due process arguments. Mrs. Berger cross appeals, arguing that the district court erred in granting Philip Morris’s renewed motion for JMOL as to her intentional tort claims and vacating the related punitive-damages award.

After thorough review, and with the benefit of oral argument, we affirm the district court’s denial of Philip Morris’s motion for a new trial and motion for JMOL on all claims; we reverse the district court’s grant of JMOL as to intentional tort claims, and conditional grant of a new trial on those claims; and we reinstate the punitive-damages award.

I. BACKGROUND

A. The Engle Litigation

This is one of thousands of " Engle -progeny" cases that flow from a Florida class action filed in 1994 against major domestic cigarette manufacturers, including Philip Morris.² The named plaintiffs in that case sought damages for smoking-related injuries under theories including negligence, strict liability, fraud, and conspiracy to commit fraud, and the case proceeded in phases. Phase I consisted of a year-long trial during which the plaintiffs presented evidence that the defendants, for decades, had engaged in advertising campaigns aimed at attracting young smokers, while intentionally deceiving consumers about the health dangers of smoking and the addictive qualities of nicotine.³ See Engle v. RJReynolds Tobacco , No. 94-08273 CA-22, 2000 WL 33534572 at *2 (Fla. Cir. Ct. Nov. 6, 2000).

Phase I produced multiple jury findings, hereinafter "Phase I findings," that favored the plaintiffs. The threshold findings resolved the question of general causation, specifically that smoking cigarettes causes multiple enumerated diseases and that nicotine in cigarettes is addictive. Additional Phase I findings focused on the defendants’ conduct, including the following:

• the defendants placed cigarettes on the market that were defective and unreasonably dangerous;

• the 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;

• the 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; and

• the defendants were negligent.

Philip Morris USA, Inc. v. Douglas , 110 So.3d 419, 424–25 (Fla. 2013) (quoting Engle v. Liggett Grp., Inc ., 945 So.2d 1246, 1276-77 (Fla. 2006) ).

The Supreme Court of Florida eventually decertified the Engle class action, finding that individualized issues such as legal causation, comparative fault, and damages could not be resolved on a class-wide basis. See Engle, 945 So.2d at 1268-69. Important to this case, the court also held that the Phase I findings listed above could be utilized by class members in future cases, now known as Engle -progeny cases, for the recovery of individual damages. See id. at 1269.

B. This Case

Mrs. Berger, a forty-year smoker diagnosed with chronic obstructive pulmonary disease

(COPD), brought this suit against Philip Morris, claiming to be an Engle class member entitled to the benefit of Phase I findings.⁴ Mrs. Berger sued under theories of strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal.

By the time of trial in September 2014, Mrs. Berger had reached the end stage of lung disease, and she depended on supplemental oxygen and a wheelchair. The first phase of the trial focused on questions of class membership, liability and compensatory damages, allocation of fault, and whether Mrs. Berger was entitled to punitive damages with respect to her intentional tort claims.⁵ The evidence established that she had developed COPD on or before November 21, 1996 and that her addiction to cigarettes containing nicotine was the cause of her lung disease—facts that qualified her as a member of the Engle class, entitled to the benefit of Phase I findings.

Like the Phase I jurors in the original Engle litigation, the jurors in this case heard extensive evidence that beginning in the early 1950’s and for decades that followed, Philip Morris and other tobacco companies engaged in a massive and effective disinformation campaign, aimed at instilling false doubt about scientific research linking cigarette smoking and deadly disease. In a post-trial order, the district court commented:

[T]here 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,

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