Hardin v. R.J. Reynolds Tobacco Co.

• Decision Date: 16 December 2020
• Docket Number: No. 3D18-0958,3D18-0958
• Citation: 314 So.3d 584
• Parties: Joyce HARDIN, etc., Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

314 So.3d 584

Joyce HARDIN, etc., Appellant/Cross-Appellee,

v.R.J. REYNOLDS TOBACCO COMPANY, Appellee/Cross-Appellant.

No. 3D18-0958

District Court of Appeal of Florida, Third District.

Opinion filed December 16, 2020.

The Ferraro Law Firm, P.A., and Allan B. Kaiser, and Dick M. Ortega, and Juan P. Bauta, II, for appellant/cross-appellee.

King & Spalding, LLP, and Scott Michael Edson (Washington, DC), and William L. Durham, II (Atlanta, GA), for appellee/cross-appellant.

Before LINDSEY, HENDON, and GORDO,¹ JJ.

ON MOTION FOR REHEARING

LINDSEY, J.

We treat Appellant's motion for rehearing as a motion for clarification. We grant said motion, withdraw our previously issued opinion, and substitute the following in its place.

This is the second appeal before this Court in this Engle progeny case. Appellant/Cross-Appellee Joyce Hardin appeals from an order granting a directed verdict on her punitive damages claims in favor of Appellee/Cross-Appellant R.J. Reynolds Tobacco Company due to insufficient evidence. Because Ms. Hardin failed to present legally sufficient evidence that R.J. Reynolds's misconduct was related to her product liability claims and was a substantial cause of Thomas Hardin's COPD and death, we affirm.²

I. BACKGROUND

In December 2007, Thomas B. Hardin commenced an Engle progeny personal injury action to recover damages for contracting COPD/emphysema³

after smoking cigarettes manufactured by R.J. Reynolds, American Tobacco Company, and Brown & Williamson (collectively, the "Reynolds Companies"), all of which are now owned by R.J. Reynolds. Mr. Hardin passed away in February 2012, and his window, Joyce Hardin ("Plaintiff"), filed the underlying wrongful death action asserting non-intentional product liability claims for strict liability and negligence and intentional tort claims for fraud by concealment and conspiracy to commit fraud. Plaintiff later filed a motion to amend to seek punitive damages for her intentional and non-intentional tort claims. The trial court concluded that punitive damages were not recoverable for the non-intentional tort claims and only allowed Plaintiff to seek punitive damages for her intentional tort claims.

Following a three-week trial, the jury returned a verdict in Plaintiff's favor on her strict liability and negligence product liability claims but returned a defense verdict on Plaintiff's intentional tort claims. The jury awarded a total of $776,000 in compensatory damages and apportioned 87% of the fault to Mr. Hardin, based on his own comparative negligence, and 13% to R.J. Reynolds. Accordingly, the trial court entered final judgment for Plaintiff in the amount of $100,800.

Plaintiff timely appealed the trial court's denial of her request to seek punitive damages on her non-intentional product liability claims. Based on the Florida Supreme Court's recently decided decision in Soffer v. R.J. Reynolds Tobacco Company, 106 So. 3d 456 (Fla. 2012), this Court reversed and remanded "for a new trial limited to the issue of punitive damages for Hardin's non-intentional tort claims." Hardin v. R.J. Reynolds Tobacco Co., 208 So. 3d 291, 292 (Fla. 3d DCA 2016).

During the second trial, the primary evidence offered in support of punitive damages was the videotaped deposition testimony of Robert Proctor, Ph.D., a historian and expert on the tobacco industry. Dr. Proctor, who admitted he did not know any details about Mr. Hardin, mainly presented generic evidence of the tobacco industry's knowledge that cigarettes were a cause of lung cancer

. And despite this knowledge, the cigarette companies mounted a campaign of mass deception and continued selling their cancer-causing cigarettes. Dr. Proctor also testified that the tobacco companies knew their cigarettes were addictive due to the nicotine and that they made their cigarettes easier to inhale.

Plaintiff also presented thirteen pages of deposition testimony from Mr. Hardin, giving a general outline of his smoking history. Mr. Hardin's testimony was that he initially smoked various cigarette brands based on what was available to him. In 1958, Mr. Hardin began smoking Kool cigarettes, manufactured by Brown & Williamson, which he continued to smoke for over 40 years, until he quit in 2004 or 2005. Mr. Hardin further testified that he started smoking Kools because he liked the taste. When asked if he saw any advertising that prompted him to switch to Kools, Mr. Hardin answered that he could not remember any.

At the conclusion of the trial, the court informed the jury that because Mr. Hardin was an Engle class member, the following findings from the Engle class action were read to the first jury:

1. Smoking cigarettes causes chronic obstructive pulmonary disease

, or COPD;

2. Cigarettes containing nicotine are addictive;

3. Defendant R.J. Reynolds Tobacco Company was negligent;

4. Defendant R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective or unreasonably dangerous.

See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1276 (Fla. 2006) (holding that with respect to compensatory damages, the above findings in favor of the Engle Class can stand). Importantly, the trial court explained that "[t]hese findings are not applicable to this case now, but are provided solely for context." See Soffer, 187 So. 3d at 1225 ("[T]he individual progeny plaintiffs are not bound by the prior procedural posture of Engle when pleading punitive damages ...." (emphasis added)).

The trial court also read four findings made by the first jury in this case, which were "binding" and could "not be denied or questioned.":

1. Thomas Hardin was addicted to cigarettes containing nicotine and such addiction was a legal cause of his chronic obstructive pulmonary disease

and death.

2. Joyce Hardin sustained damages for the loss of her husband, Thomas Hardin's companionship and protection, and for her mental pain and suffering as a result of Thomas Hardin's death. Those damages amounted to $776,000.

[3]. The first jury found that Mr. Hardin was 87 percent at fault for causing his own COPD and death and that R.J. Reynolds was 13 percent at fault for causing Mr. Hardin's COPD and death.

4. The jury further found that Mr. Hardin did not rely, to his detriment, on any statement made by

R.J. Reynolds or any other tobacco company.

Crucial to our analysis in this case are the following jury instructions on punitive damages:⁴

Punitive damages are warranted against R.J. Reynolds if you find by clear and convincing evidence that R.J. Reynolds was guilty of intentional misconduct or gross negligence related to Plaintiff's claims of defective product and negligence, which was a substantial cause of Thomas Hardin's COPD and death.

The court further instructed the jury that it could "not seek to punish R.J. Reynolds for any harm suffered by any individuals other than Thomas B. Hardin." Moreover, "R.J. Reynolds cannot be punished merely for manufacturing, selling, or advertising cigarettes."

The jury ultimately deadlocked, writing the following note during deliberations: "We do not think that we can reach a decision in this case." At this point, R.J. Reynolds renewed several motions for directed verdict, which were initially submitted after Plaintiff rested her case-in-chief. In its motion for directed verdict due to insufficient evidence, R.J. Reynolds argued that Plaintiff had failed to introduce any evidence connecting punishable misconduct to Mr. Hardin. More specifically, R.J. Reynolds argued that Plaintiff had "failed to carry her burden of proving–let alone by clear and convincing evidence–that R.J. Reynolds engaged in sanctionable misconduct that caused Mr. Hardin's COPD and death."

The court delivered an Allen charge to the jury⁵ and proceeded to hear extensive arguments on R.J. Reynolds's motion for directed verdict while the jury continued deliberations. R.J. Reynolds asserted that based on the jury instructions, the jury could only award punitive damages for misconduct that was a substantial cause of the harm to Mr. Hardin—specifically COPD—but the generic evidence presented to the jury was about lung cancer

. R.J. Reynolds also argued that there was a lack of evidence concerning the Kool cigarettes that Mr. Hardin smoked for over 40 years. In short, it was R.J. Reynolds's position that although Plaintiff presented evidence of misconduct, there was insufficient evidence connecting the misconduct to Mr. Hardin.

In response, Plaintiff focused on the evidence of misconduct but not on linking that misconduct to Mr. Hardin. For instance, plaintiff argued that it did not matter whether Dr. Proctor said anything about COPD⁶ because once it was established that "cigarettes could cause harm, whether it's ringworm

or cancer, you have an obligation to tell your consumers that there's a danger in this defective product." Plaintiff also repeatedly argued that "all we have to show" is intentional misconduct. When asked directly by the trial court "[w]hat have you shown that Mr. Hardin and Mrs. Hardin are deserving of punitive damages[,]" counsel for plaintiff answered: "I don't have to show anything other than Mr. Hardin dies from smoking their defective cigarettes. That's it."

After the jury was again unable to come to a decision, the court granted R.J. Reynolds's motion for a directed verdict, finding that "no reasonable jury under the circumstances of this case could find that punitive damages were warranted." Plaintiff moved for rehearing, raising many of the same arguments as before. The trial court conducted a hearing and once more considered the parties’ arguments, observing that this is a "test case" about whether "generic normal Engle evidence, with nothing, zero frills attaching it to the plaintiff" is enough to send the case to the jury on punitive damages. Plaintiff again focused on the evidence of misconduct. And R.J. Reynolds again maintained that Plaintiff's evidence of misconduct had nothing to do with Mr. Hardin specifically. The court agreed and denied Plaintiff...