Philip Morris Inc. v. French

• Citation: 897 So.2d 480
• Decision Date: 22 December 2004
• Docket Number: No. 3D02-2772.,3D02-2772.
• Parties: PHILIP MORRIS INC., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Corp., individually and as successor by merger to the American Tobacco Company, Appellants, v. Lynn FRENCH, Appellee.
• Court: Florida District Court of Appeals

897 So.2d 480

PHILIP MORRIS INC., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Corp., individually and as successor by merger to the American Tobacco Company, Appellants, v. Lynn FRENCH, Appellee.

No. 3D02-2772.

District Court of Appeal of Florida, Third District.

December 22, 2004.

Rehearing and Rehearing Denied April 13, 2005.

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

Grover, Weinstein & Trop, P.A., Miami, and Robert Grover, and Marvin Weinstein; Podhurst, Orseck, P.A., Miami, and Joel S. Perwin, for appellee.

Before SCHWARTZ, C.J., and GREEN and SHEVIN, JJ.

Rehearing and Rehearing En Banc Denied April 13, 2005.

PER CURIAM.

Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, and Lorillard Tobacco Company (collectively referred to as "the tobacco defendants") appeal from a final judgment, based on a jury verdict, awarding Lynn French $5.5 million dollars in damages for injuries she incurred as a result of second-hand smoke. The plaintiff, French, cross-appeals from the final judgment's allocation of liability based upon the defendants' market shares, pursuant to a settlement agreement among the defendants in a prior class action. For the following reasons, we affirm the final judgment in part and remand with instructions that the defendants be held jointly and severally liable for the plaintiff's damages.

I. Facts

A. Pre-Suit Events

1. The Broin Settlement

In 1991, a class action suit was brought on behalf of 60,000 non-smoking flight attendants who had been exposed to second-hand cigarette smoke (otherwise known as environmental tobacco smoke or "ETS"). This court approved the class in Broin v. Philip Morris Cos., Inc., 641 So.2d 888 (Fla. 3d DCA 1994). On remand the trial court entered an order adopting a trial plan for the class action suit. This order provided:

In order to conserve precious Court time and to expedite the trial of the issues, it has become apparent that this case should be decided in Stages and Phases which would include "Special Verdicts" and "General Verdicts" (Manual for Complex Litigation).

* * *

Therefore, the Court has decided on the following Plan.

1. The trial shall be tried in Two Stages. The First Stage shall encompass all common issues with regard to the subclass of Lung/Pulmonary/Sinus diseases and disorders, including lung cancer. The First Stage will encompass common issues of Generic Causation (scientific) and issues revolving around the behavioral aspects of the Defendants concerning fraudulent misrepresentations and/or conspiracy. The Second Stage shall be concerned with the Non-Common or Individual Claims of the Plaintiffs in this subclass.

After the Stage One trials,¹ the Stage Two trials would then proceed on the individual claims of the plaintiffs as they relate to damages and the "[l]iability issues that are remaining, including Defenses available to the Defendants."

Phase One of Stage I began on June 2, 1997. The Plaintiffs presented 52 witnesses over three and one-half months, and rested their case on September 22, 1997. The tobacco defendants moved for a directed verdict on the counts of fraud, misrepresentation, conspiracy, and punitive damages. The trial court took the motion under advisement. The defendants presented 14 witnesses. Thereafter, a settlement was reached on October 9, 1997. The trial court preliminarily approved the agreement and subsequently approved, without modification, the agreement following a fairness hearing. The motion for directed verdict was still pending at the time of the settlement.

The settlement agreement contains many provisions with both sides having made considerable concessions. The tobacco defendants agreed to fund a research foundation² with $300 million and to pay counsel for the class $49 million in fees and costs. In addition, the tobacco defendants agreed to:

[W]aive the statute of limitations; shift the burden of proof on generic causation as to lung cancer, chronic obstructive pulmonary disease, chronic bronchitis, chronic sinusitis and emphysema; allow the class members to proceed in the venue where they reside or where otherwise proper; provide a copy of the video of the trial, including expert testimony, for use in individual lawsuits; accept service of process by certified mail; not contest personal jurisdiction or service of process; not challenge joinder of defendants in one lawsuit; not assert that any released party is responsible in whole or part for injuries or damages; not assert motions to dismiss challenging legal sufficiency of any claims in individual actions that restate verbatim the counts in the Broin complaint; [and] support Federal legislation that would impose a smoking ban on all international flights.

Ramos v. Philip Morris Cos., Inc., 743 So.2d 24, 27 (Fla. 3d DCA 1999).

Under the agreement (hereinafter "Broin settlement agreement"), the class plaintiffs abandoned all claims for punitive damages and agreed to dismiss with prejudice, their fraud, misrepresentation and conspiracy claims. The plaintiffs and their survivors, however, retained the right to bring individual suits for compensatory damages based on any "theory of liability other than for fraud, misrepresentation, conspiracy to commit fraud or misrepresentation, RICO, suppression, concealment or any other alleged willful or intentional conduct."

Finally, and most importantly for our purposes here, the tobacco defendants agreed to a shift in the burden of proof for purposes of general causation. Specifically, the settlement agreement provides that:

(d) With respect to any Retained Claims seeking damages on account of lung cancer, chronic bronchitis, emphysema, chronic obstructive pulmonary disease, or chronic sinusitis, brought by a member of the Class or his or her survivor, the burden of proof as to whether Environmental Tobacco Smoke ("ETS") can cause one of the above-described diseases ("General causation") shall be borne by the Settling Defendants and the Jury shall be so instructed; in all other respects, including the issue of whether an individual plaintiff's disease was caused by ETS (specific causation"), the ordinary burdens of proof applicable to any Retained Claims shall remain unaltered. In addition, the altered burden of proof provided herein with respect to general causation shall in no way affect the ability of the Settling Defendants to introduce any evidence or argument as to general causation, specific causation, or alternative causation, or to introduce any other evidence or argument which the Settling Defendants would otherwise be entitled to present, at any future trial in which Retained Claims are brought. The Settling Defendants' agreement to alter the burden of proof as provided herein is not an admission of any sort, and shall not be construed, now or at any future trial or proceeding, as an admission of causation or any other fact or legal contention[.]

Various intervenors objected to the settlement agreement claiming, in part, that the agreement required them to retry the breach-of-duty issue. The trial court approved the settlement finding it "fair, adequate and reasonable," and that the class plaintiffs' claims taken as a whole, had a less than 50% chance of prevailing at trial.

This court affirmed the settlement agreement finding that "the trial court correctly ruled that the settlement is `fair, adequate and reasonable.'" Ramos, 743 So.2d at 31 (citations omitted). As one of many benefits in the agreement, this court specifically found that:

[a]nother substantial benefit is the burden-shifting provision. This provision establishes a "generic causation" presumption in favor of the flight attendants. Many experts opined that this provision forecloses any defense argument that there is no valid, scientific basis for a finding of causation. R. 10294-95. This benefit, in and of itself, is a significant victory for the individual plaintiffs. As the trial court noted, there was a "high likelihood ... that the jury would not find causation as to all 26 diseases.

Ramos, 743 So.2d at 32.

2. Post Settlement Flight Attendant Litigation

Following the settlement, over 3,000 flight attendants brought individual suits against the tobacco defendants for the claims retained by the agreement. Faced with this multitude of suits, the administrative judge supervising the suits determined that rulings on common issues of law would be made by a single judge.³ In May of 2000, Judge Robert Kaye, the trial judge in Broin, was appointed to rule on these common issues.

An issue arose as to which party would carry what burdens of proof in light of the Broin settlement agreement. The plaintiffs' counsel urged that "all issues in Stage I were resolved with the settlement and the only thing left to be tried is specific causation for each Plaintiff and damages." The tobacco defendants, on the other hand, claimed that although they had assumed the burden of proof on the issue of general causation each plaintiff should be required to put on witnesses and experts to prove each of the individual elements of their pled claims. Both parties briefed the issue and the court heard the arguments of counsel. Judge Kaye issued an "Order on the Courts Administration and Jurisdiction Over the Consummation of the Settlement Agreement" ruling that the burden shifting portion of the settlement agreement created, in essence, a presumption of liability in favor of the plaintiffs. Specifically, the court held that:

This Court has always been of the opinion that the spirit and intent of the Settlement Agreement was to the effect that the Retained Claims which were to be tried in individual trials, subsequent to the Settlement, were to be tried as Stage II claims.

At issue in this motion is whether Plaintiff bears the burden of proving the elements of the counts alleged in the

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