Philip Morris USA, Inc. v. Ledoux

• Decision Date: 18 October 2017
• Docket Number: No. 3D16–675,3D16–675
• Citation: 230 So.3d 530
• Parties: PHILIP MORRIS USA, INC. and R.J. Reynolds Tobacco Company, Appellants, v. Roland LEDOUX, as Personal Representative of the Estate of Patricia Mary Ledoux, Appellee.
• Court: Florida District Court of Appeals

230 So.3d 530

PHILIP MORRIS USA, INC. and R.J. Reynolds Tobacco Company, Appellants,

v.Roland LEDOUX, as Personal Representative of the Estate of Patricia Mary Ledoux, Appellee.

No. 3D16–675

District Court of Appeal of Florida, Third District.

Opinion filed October 18, 2017

Arnold & Porter Kaye Scholer, Daphne O'Connor and Geoffrey J. Michael (Washington, DC); Shook, Hardy & Bacon and Frank Cruz–Alvarez ; King & Spalding, William L. Durham, II, and Val Leppert (Atlanta, GA), for appellants.

Gordon & Doner, Robert E. Gordon and Gary M. Paige (Davie); Trop Law Group and Adam Trop (Tamarac); David J. Sales and Daniel R. Hoffman (Jupiter), for appellee.

Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.

EMAS, J.

The defendants below, Philip Morris USA, Inc. ("PM") and R.J. Reynolds Tobacco Company ("RJR") (together, "Defendants"), appeal from a final judgment following a jury trial and a verdict in favor of the plaintiff below, Roland Ledoux ("Roland"), as the personal representative of the estate of Patricia Mary Ledoux ("Plaintiff" or "Patricia"). We affirm.

FACTS

Plaintiff brought an Engle ¹ -progeny claim against Defendants, alleging that Patricia died from lung cancer

caused by an addiction to smoking cigarettes manufactured and marketed by Defendants. Plaintiff alleged causes of action for strict liability, fraud by concealment, conspiracy to commit fraud, and negligence.

The case proceeded in two phases: In Phase I, the jury determined: 1) whether Patricia was addicted to cigarettes containing nicotine; if so, 2) whether her addiction was the legal cause of her lung cancer

and death; if so, 3) the amount of compensatory damages; and 4) whether punitive damages were warranted against Defendants. In Phase II, the jury determined the amount of punitive damages.

Prior to trial, Defendants filed several motions in limine, two of which are relevant to this appeal. First, Defendants moved to exclude "testimony, other evidence, or argument concerning ... the number of deaths purportedly caused by cigarettes." The trial court denied this motion. Second, Defendants moved to prohibit several categories of improper arguments. The trial court granted this motion.

1. Deaths Caused by Smoking

a. Opening Statement

During the Phase I opening statement, Plaintiff's counsel told the jury, over Defendants' objection, that in 2014, there were "500,000 deaths per year from smoking just from lung cancer

in that one year in the United States" and that there had been "20 million deaths since 1964 from smoking," repeating the number "20 million." Plaintiff's counsel also stated over Defendants' objection that "50 percent of all regular smokers are going to die from smoking those cigarettes." In addition, Plaintiff's counsel told the jury, again over Defendants' objection, that "to this day, smoking is the number one cause of preventable death in the United States ... [s]moking kills more people than alcohol, cocaine, heroin, homicide, suicide, motor vehicle crashes and fires combined."

b. Plaintiff's Expert

At trial, Plaintiff's expert historian, Dr. Robert Proctor, testified as to the number of deaths caused by smoking. Specifically, Dr. Proctor testified as to the following:

[Dr. Proctor]: Well, in the United States, it is over 500,000 Americans die every year from cigarettes.

[Defendants' counsel]: Objection, State Farm.²

[The trial court]: Overruled.

...

[Plaintiff's counsel]: By the way, how many people since 1964 have died from lung cancer

?

[Doctor Proctor]: Of lung cancer—

[Plaintiff's counsel]: I mean from smoking.

[Doctor Proctor]: From smoking—from cigarettes altogether, it is over 20 million.

[Plaintiff's counsel]: Okay.

[Defendant's counsel]: Objection, Williams³ /State Farm.

[The trial court]: Overruled.

...

[Plaintiff's counsel]: Well, between 1950 and presently, how many people have died from smoking in America?

[Defendants' counsel]: Objection, Your Honor, Williams/State Farm.

[The trial court]: Overruled.

[Doctor Proctor]: Over 20 million Americans, closer to 25 million.

2. Closing Argument

During Plaintiff's Phase I closing argument, Plaintiff's counsel made several arguments that Defendants characterize as improper and in violation of the trial court's in limine ruling prohibiting certain types of arguments. In particular, Defendants contend that Plaintiff's counsel engaged in the following improper arguments:

Comment Number One:

[Plaintiff's counsel]: But I can tell you this, if in 1996 someone had put an ad in the paper that Roland Ledoux had read—he reads the paper every day—and the ad was, we will pay you $10 million, and all you have to do is you have to sit there and you have to watch your wife, the love of your life, choke and struggle and die in front of you—

Defense counsel objected, stating "there's no evidence of this, Your Honor." The objection was overruled.

Comment Number Two:

Immediately thereafter, Plaintiff's counsel told the jury:

Then you have to bury her and you have to live alone for the next 19 years and the rest of your life, I submit to you that Roland Ledoux would have said, thank you, but keep the money.

This comment drew an objection which was sustained by the trial court. The trial court, however, denied Defendants' motion for mistrial.

Comment Number Three:

In the final complained-of argument, Plaintiff's counsel said:

If there was a way that Roland Ledoux could wave a magic wand and bring his wife back in and she would walk in the door, he would walk right out that courtroom and right there, take her hand and say, come on, honey, let's go home. He was not given that option. He is here because of what the Defendants did. And he's going to ask you to hold them accountable.

Defendants did not interpose an objection to this argument, but it was raised in their posttrial motion for new trial.

3. The Verdicts

At the conclusion of Phase I, the jury found that Patricia was addicted to smoking cigarettes containing nicotine manufactured by Defendants and as a result she died from lung cancer

. The jury found for Plaintiff, allocating 47% of the comparative fault to each Defendant and 6% to Patricia. The jury awarded Plaintiff $10 million in compensatory damages for his pain and suffering. The jury also found for Plaintiff on the intentional torts of concealment and conspiracy to conceal. In addition, the jury found by clear and convincing evidence that Defendants' conduct warranted punitive damages. In Phase II, the jury awarded $12.5 million in punitive damages against each Defendant. The trial court entered final judgment in favor of Plaintiff holding Defendants jointly and severally liable for the $10 million in compensatory damages and each Defendant liable for $12.5 million in punitive damages.

4. Post-trial Motions

Defendants filed several post-trial motions. Defendants moved for a new trial or, in the alternative, remittitur, arguing that the damage awards were excessive. Defendants also requested to reduce the compensatory damages award by the percentage of comparative fault attributed by the verdict to Patricia. Defendants moved the trial court to apply a credit against the jury's award of punitive damages based on the amounts paid by PM USA and RJR's predecessor-in-interest, Lorillard Tobacco Company ("Lorillard"), as part of the Guaranteed Sum Stipulation—a stipulation entered into in the original Engle litigation. Finally, Defendants moved for a new trial on the basis of improper arguments. The trial court denied each of these motions.

ANALYSIS

1. Deaths Caused by Smoking

Defendants argue that the trial court erred in allowing Plaintiff to introduce evidence and present argument regarding the number of deaths caused by smoking. Defendants contend this evidence was irrelevant and unduly prejudicial, requiring a new trial. Our standard of review on a trial court's evidentiary rulings is abuse of discretion. Salazar v. State, 991 So.2d 364, 373 (Fla. 2008). We conclude that the trial court did not abuse its discretion in permitting Plaintiff to introduce evidence and present argument regarding the number of deaths caused by smoking as it was relevant to the issue of entitlement to punitive damages (an issue determined by the jury during Phase I of the trial), and bears upon the question of "reprehensibility."

Further, the trial court properly guided and limited the jury's consideration of this evidence by giving the following instruction:

In determining whether punitive damages are warranted, you may not punish a Defendant for any harm suffered by any individuals others than Mr. Ledoux or Mrs. Ledoux. You may consider harms suffered by other persons not parties to this lawsuit in deciding whether to punish a Defendant for the reprehensibility or wrongness of its conduct.

See Philip Morris USA v. Williams, 549 U.S. 346, 355, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) (agreeing that harm to others is relevant to the issue of reprehensibility but that "[g]iven the risks of unfairness, it is constitutionally important for a court to provide assurance that a jury is asking the right question;" that is, "seeking, not simply to determine reprehensibility, but also to punish for harm caused [to] strangers").

2. Closing Arguments

Defendants assert that three arguments made by Plaintiff's counsel during closing argument, described above, were improper and therefore require a new trial. On appeal, Defendants assert that these arguments were a violation of the Golden Rule. A Golden Rule argument asks the jurors "to place themselves in the plaintiffs' position and urge[s] them to award an amount of money they would desire if they had been the victims." Coral Gables Hosp., Inc. v. Zabala, 520 So.2d 653, 653 (Fla. 3d DCA 1988). "[A] golden rule argument ... is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence." Metro. Dade Cty. v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). "Such arguments constitute reversible error, if a contemporaneous...