Lorillard Tobacco Co. v. Alexander

• Decision Date: 29 October 2013
• Docket Number: No. 3D12–1593.,3D12–1593.
• Citation: 123 So.3d 67
• Parties: LORILLARD TOBACCO COMPANY, Appellant, v. Dorothy ALEXANDER, individually and as Personal Representative of the Estate of Coleman Alexander, Appellee.
• Court: Florida District Court of Appeals

123 So.3d 67

LORILLARD TOBACCO COMPANY, Appellant,

v.Dorothy ALEXANDER, individually and as Personal Representative of the Estate of Coleman Alexander, Appellee.

No. 3D12–1593.

District Court of Appeal of Florida, Third District.

Sept. 4, 2013.

Rehearing Denied Oct. 29, 2013.

Greenberg Traurig, P.A., and Elliot H. Scherker, David L. Ross, Julissa Rodriguez and Brigid F. Cech Samole, Miami, for appellant.

Law Office of Robert S. Glazier and Robert S. Glazier; The Mills Firm, P.A., and John S. Mills and Courtney Brewer, Tallahassee; The Alvarez Law Firm, and Alex Alvarez; Parker Waichman LLP, and Jordan Chaikin, Bonita Springs; Gordon & Doner, P.A., and Gary Paige, Pembroke Pines, for appellee.

Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, J.

Lorillard Tobacco Company (“Lorillard”) appeals a final judgment entered after a jury verdict in favor of Dorothy Alexander (“Mrs. Alexander” or “the plaintiff”), individually and as Personal Representative of the Estate of Coleman Alexander, in this Engle-progeny case.¹ After a three-week trial, the jury found in favor of Mrs. Alexander on her claims against Lorillard for strict liability, fraudulent concealment, conspiracy to commit fraud by concealment, and negligence, but found Mrs. Alexander's husband, Coleman Alexander (“Coleman”), twenty percent comparatively liable, and awarded Mrs. Alexander $20 million in compensatory damages and $25 million in punitive damages.

Lorillard filed multiple post-trial motions, including motions seeking remittitur of the compensatory and punitive damages awards. The trial court denied all of Lorillard's post-trial motions except the motion for remittitur of the compensatory damages award and remitted the compensatory damages award to $10 million. After computation of comparative fault, Mrs. Alexander was awarded $8 million in compensatory damages and $25 million in punitive damages, which the trial court declined to remit. This appeal ensued.

On appeal, Lorillard basically reiterates its post-trial claims of error. Additionally, Lorillard now claims that it is entitled to a new trial on compensatory damages rather than the remittitur that it sought and received post-trial. Because we find Lorillard's multiple arguments on appeal without merit; the remitted compensatory damages award in the amount of $10 million and the punitive damages award in the amount of $25 million are neither excessive nor unconstitutional; and the compensatory and punitive damages awards are supported by the manifest weight of the evidence, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mrs. Alexander filed suit against Lorillard based on the death of her husband, Coleman, from smoking-related lung cancer. The complaint included claims against Lorillard for negligence, strict liability, fraudulent concealment, and conspiracy to commit fraud by concealment, and sought compensatory and punitive damages.

During voir dire, the potential jurors were provided a list of names, including that of the plaintiff's daughter, Diane Alexander (“Diane”), and asked if they recognized any of the names. None of the jurors responded. A few days later, however, one of the jurors, Melinda Graham, recognized Diane when she saw her in the courthouse hallway. The plaintiff's counsel immediately advised the trial court of this development. Lorillard sought to have the juror removed and replaced. After interviewing Ms. Graham, the trial court denied Lorillard's motion to remove her from the jury.

During the trial, Mrs. Alexander testified about Coleman's smoking history, their lives together, and the final months before Coleman's death from lung cancer. Mrs. Alexander testified that Coleman began smoking in sixth grade and smoked from one to two packs of cigarettes per day. In addition, Mrs. Alexander, a former nurse, relayed conversations she had with Coleman where she talked to him about the health hazards associated with smoking. Mrs. Alexander explained that although she tried to convince Coleman to stop smoking, up until 1985, Coleman told her that he believed smoking, particularly smoking filtered cigarettes, was safe and that he did not think the tobacco companies would make a product that would kill people. Coleman specifically told Mrs. Alexander that he had switched to Lorillard's Kent cigarettes in 1958 because he believed they were safer than other brands because of their filter design. Finally, sometime in 1985, when Coleman began to believe that smoking was harmful, he tried to, but was unable to stop smoking, because he was addicted to cigarettes. The plaintiff's addiction expert confirmed that Coleman was addicted to cigarettes.

Mrs. Alexander also spoke of her life with Coleman, both before and after they received his lung cancer diagnosis. The Alexanders, who began dating in high school, had been married almost thirty-eight years and had raised three children when Coleman died at the age of fifty-nine. Mrs. Alexander was Coleman's nurse and primary caretaker until his painful death in 1995. Mrs. Alexander described how Coleman suffered, and how by the time of his death, he was incontinent and could no longer move or breathe without help. At the time of Coleman's death, Mrs. Alexander was fifty-seven years old, and although seventy-three at trial, Mrs. Alexander never dated anyone after Coleman's death.

On the day before the jury was to begin its deliberations, the trial judge informed the parties that he would be attending a funeral during the second afternoon of jury deliberations. The judge explained that he would be available by telephone to answer any questions raised by the jury. Over Lorillard's objections, the jury proceeded with its deliberations. At 2:03 p.m. on the second day of deliberations, while the judge was away, the jury announced that it had reached a verdict. Seven minutes later, however, at 2:10 p.m., the jury told the bailiff that it needed a few more minutes. Seventeen minutes later, at 2:27 p.m., the jury advised the bailiff that it had reached a verdict. The bailiff notified the trial judge and the judge was in the court to receive the verdict at 3:43 p.m.

The jury found against Lorillard on all claims, but found Coleman twenty percent at fault, and returned a verdict awarding Mrs. Alexander $20 million in compensatory damages and $25 million in punitive damages. Lorillard moved for a new trial on several issues and also moved for remittitur of the compensatory and punitive damages awards. The trial court denied all motions except for Lorillard's motion to remit the compensatory damages, which it remitted to $10 million.

DISCUSSION

First, and foremost, this Court is mindful of, and underscores, that abuse of discretion is the appropriate standard of review for all but one of the issues on appeal.² Lorillard's constitutional challengeto the amount of the punitive damages award, however, is subject to de novo review. R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1071 (Fla. 1st DCA 2011) (citing Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla.2006)).

We begin, as we must, with the Florida Supreme Court decision in Engle, where the Court held that although the class-action case filed against tobacco companies and tobacco industry organizations by smokers and their survivors could not proceed as a class-action lawsuit on the issues of individual causation and apportionment of damages, certain findings on common liability would stand and would be provided res judicata effect in subsequently filed individual cases. Engle, 945 So.2d at 1254–55. Consequently, once Coleman was established as a member of the Engle class and Lorillard as one of the tobacco industry Engle defendants, the following findings were given preclusive effect in this case: (1) smoking causes certain cancers and medical conditions; (2) nicotine is addictive; (3) Lorillard placed cigarettes on the market that were defective and unreasonably dangerous; (4) Lorillard concealed or omitted material information concerning the health effects and addictive nature of smoking; (5) Lorillard agreed to conceal or omit this information with the intention that the public would detrimentally rely on the information; (6) Lorillard sold or supplied cigarettes that were defective; (7) Lorillard sold or supplied cigarettes that did not conform to the representations of fact made by Lorillard; and (8) Lorillard was negligent. Id. at 1277.

With these findings and the standard of review in mind, we now discuss the issues on appeal.

1. Whether the trial court abused its discretion by denying Lorillard's motion to strike juror Melinda Graham.

The trial court's determination of whether to remove a juror for non-disclosure is subject to a three-prong analysis. Tricam Indus. Inc. v. Coba, 100 So.3d 105, 112 (Fla. 3d DCA 2012) (citing Pereda v. Parajon, 957 So.2d 1194, 1197 (Fla. 3d DCA 2007)). Thus, the party seeking a new trial based on allegations that a juror failed to disclose information must demonstrate that: “(1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party's lack of diligence.” Tricam, 100 So.3d at 112 (quoting Pereda, 957 So.2d at 1197).

Applying this test, we find that while the information at issue was relevant and the non-disclosure was not the result of Lorillard's lack of due diligence, the second element—concealment of information during voir dire—is missing. See, e.g., Singletary v. Lewis, 584 So.2d 634, 636 (Fla. 1st DCA 1991) (holding that a juror's relationship or knowledge of one of the parties is material and the extent and nature of the relationship or knowledge must be determined by interviewing the juror); see also Tricam, 100 So.3d at 112 (clarifying that the “due diligence” test requires that the questions be sufficiently precise to explain the type of...