Philip Morris USA, Inc. v. Kayton

• Decision Date: 18 January 2013
• Docket Number: No. 4D10–3573.,4D10–3573.
• Citation: 104 So.3d 1145
• Parties: PHILIP MORRIS USA, INC., Appellant, v. Allyson KAYTON as Personal Representative of the Estate of Ellen Tate, Appellee.
• Court: Florida District Court of Appeals

104 So.3d 1145

PHILIP MORRIS USA, INC., Appellant,

v.Allyson KAYTON as Personal Representative of the Estate of Ellen Tate, Appellee.

No. 4D10–3573.

District Court of Appeal of Florida,

Fourth District.

Nov. 28, 2012.

Rehearing Denied Jan. 18, 2013.

Lauren R. Goldman of Mayer Brown LLP, New York, New York, Gary L. Sassoof Carlton Fields, Tampa, and Andrew S. Brenner of Boies, Schiller & Flexner LLP, Miami, for appellant.

John S. Mills of The Mills Firm, P.A., Tallahassee, Robert S. Glazier of the Law Office of Robert S. Glazier, Miami, Law Office of Gary Paige, P.A., Coral Gables, Trop & Ameen, P.A., Hollywood, and the Alvarez Law Firm, Coral Gables, for appellee.

TAYLOR, J.

In this Engle¹ progeny case, Philip Morris USA, Inc., appeals a final judgment entered on a jury verdict for Ellen Tate ² on her claims for strict liability, negligence, and conspiracy to commit fraudulent concealment. The jury awarded plaintiff $8,000,000 in compensatory damages and $16,215,000 in punitive damages. Philip Morris argues that the trial court erred in: (1) using the Engle Phase I findings to conclusively establish the conduct elements of plaintiff's claims; (2) foreclosing Philip Morris's statute of repose defense to plaintiff's claim for conspiracy to commit fraudulent concealment; (3) denying Philip Morris's motion for judgment on plaintiff's claim for conspiracy to commit fraudulent concealment in light of the jury's verdict in Philip Morris's favor on the fraudulent concealment claim; and (4) denying Philip Morris's motion for new trial or remittitur of the jury's awards of compensatory and punitive damages.³

Based on our prior decision addressing appellant's first point of error, we affirm the trial court's order granting plaintiff partial summary judgment as a result of the Engle Phase I findings. R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 717–18 (Fla. 4th DCA 2011). For the reasons stated below, we affirm the denial of Philip Morris's motion for judgment on plaintiff's claim for conspiracy to commit fraudulent concealment. We also affirm the jury's award for compensatory damages but reverse the punitive damages award because the trial court erred in barring Philip Morris from asserting the statute of repose as an affirmative defense to plaintiff's fraud-based conspiracy claim. As we did in Philip Morris USA, Inc. v. Cohen, 102 So.3d 11 (Fla. 4th DCA 2012), we approve the amount of punitive damages awarded by the jury; the only issue on remand will be appellee's entitlement to the award, which will be resolved when the jury determines whether appellee reasonably relied on statements or omissions made by appellant's co-conspirators within the applicable statute of repose.

The plaintiff below, a longtime smoker diagnosed with chronic obstructive pulmonary disease (“COPD”), brought suit against Philip Morris. Her case was one of several post-Engle cases assigned to the Complex Civil Division of the Seventeenth Judicial Circuit. In her complaint, plaintiff alleged claims for strict liability, negligence, fraudulent concealment, and conspiracy to commit fraudulent concealment. Along with other post-Engle plaintiffs, she filed a motion for partial summary judgment as to several affirmative defenses raised by Philip Morris, including the statute of repose. She argued that these affirmative defenses were precluded by Engle. The trial court agreed and ruled Philip Morris would not be allowed to assert the statute of repose as an affirmative defense at trial.

At trial, the plaintiff testified that she started smoking when she was thirteen years old. She was born and raised in Brooklyn, New York, where smoking was prevalent. She could not say why she started smoking; she felt it was glamorous and everyone was doing it. By the time she was seventeen, the plaintiff was smoking over a pack and a half a day, and this number later increased to two packs a day.

The plaintiff testified that it was not unusual for someone her age to start smoking. In 1959, the year when she started smoking, there were no warnings on cigarette packs, so she had no reason to believe that cigarettes were dangerous. When she became pregnant with her first child, doctors did not even caution her to stop smoking for the sake of her baby's health. She was aware of the Surgeon General's report issued in 1964 that advised the public that smoking could be dangerous, but she did not pay much attention to it. Nor did she pay much attention to the warning labels that began appearing on her packs of cigarettes in the late sixties and seventies. The tobacco companies kept putting out information that smoking was safe, and she kept believing them. She could not remember a specific advertisement or billboard she relied on for reassurance, but she recalled seeing many over the years. At some point in the late eighties, however, she did switch from Marlboros to Merits because Philip Morris had advertised that Merits had less tar and nicotine. She testified that she did not know that Philip Morris, as well as other tobacco corporations, were aware that smoking could cause cancer or disease. She further testified that, had she known, she would have attempted to quit.

The plaintiff was diagnosed with COPD, a condition which progressively deteriorates the lungs. Her diagnosis provided her with the necessary motivation to quit smoking. She testified that her disease forced her to carry an oxygen tank with her when she was away from home; when she was home, she had to be directly connected to an oxygen concentrator via a fifty-foot tube.

The plaintiff's personal physician testified that the plaintiff's COPD was “very severe” and that her condition steadily deteriorated since her diagnosis. By the time of trial, the disease had completely perforated her lungs, and he believed it was miraculous that she had not already succumbed to the disease—her lung capacity was only at twenty-two percent.

The plaintiff also presented testimony from Dr. Robert Proctor, a historian and expert on the history of the tobacco industry. Dr. Proctor testified about the mission of the Tobacco Institute, a corporation formed by Philip Morris (as well as several other tobacco corporations) “to promote public understanding of the [tobacco] industry.” In Dr. Proctor's opinion, the Tobacco Institute's true purpose was to create a doubt that there was a causal link between cigarettes and disease. In addition to this expert testimony, the plaintiff presented internal memoranda from the Tobacco Institute showing that the Institute was aware that cigarettes were virulent and that its statements could provide the basis for a charge that tobacco corporations were “making false or misleading statements to promote the sale of cigarettes.”

During closing argument, plaintiff's counsel argued that Philip Morris was “the most notorious liar in the history of American civilization,” and he compared Philip Morris's behavior to conduct involved in scandals such as Watergate and Enron. Philip Morris did not object to these accusations during trial.

The jury found that the plaintiff's addiction to cigarettes was a legal cause of her COPD; that Philip Morris's negligence was a legal cause of her loss, injury, or damages; that defective and unreasonably dangerous cigarettes placed on the market by Philip Morris were a legal cause of her loss, injury, or damage; and that, while the plaintiff did not rely upon fraudulent statements made by Philip Morris, she did rely upon acts done in furtherance of Philip Morris's agreement to conceal or omit material information. The jury found for Philip Morris on plaintiff's fraudulent concealment claim. The jury awarded the plaintiff $8,000,000 in compensatory damages and $16,215,000 in punitive damages as a result of Philip Morris's agreement to conceal or omit material information. Her damages were subsequently reduced in accordance with the jury's finding that she was thirty-six percent at fault for her injuries.

Philip Morris filed a post-trial motion for directed verdict, arguing that the jury's finding that the plaintiff had not relied upon fraudulent statements made by Philip Morris entitled it to judgment as a matter of law on the conspiracy claim. Philip Morris also filed a motion for new trial, arguing that the court's pre-trial ruling on affirmative defenses had precluded it from mounting a complete defense at trial. In addition, Philip Morris argued that the damages were excessive and the result of inflammatory comments made by plaintiff's counsel during closing argument. Philip Morris sought remittitur as an alternative to a new trial. The trial court denied these motions.

Motion for Judgment on Plaintiff's Claim for Conspiracy to Commit Fraudulent Concealment

Philip Morris argues that the trial court erred in denying its post-trial motion for directed verdict on the plaintiff's claim for conspiracy to commit fraudulent concealment because the plaintiff presented insufficient evidence to support that claim. Philip Morris argues that, in light of the jury's verdict in favor of Philip Morris on fraudulent concealment, the plaintiff was required to establish that the fraudulent misrepresentation on which she relied was made by one of Philip Morris's co-conspirators and there was no evidence that the plaintiff relied upon any statements made by the co-conspirators.

An appellate court reviewing a ruling on a motion for directed verdict must view the evidence and all inferences of fact in a light most favorable to the nonmoving party. Gyongyosi v. Miller, 80 So.3d 1070, 1074 (Fla. 4th DCA 2012). A directed verdict should only be granted “where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Id.

There was sufficient evidence, when viewed in the light most favorable to the plaintiff, to sustain a verdict in her favor on the conspiracy to commit fraudulent concealment claim. Despite the plaintiff's inability to recall...