Philip Morris USA Inc. v. Boatright

• Decision Date: 12 April 2017
• Docket Number: Case No. 2D15–622
• Citation: 217 So.3d 166
• Parties: PHILIP MORRIS USA INC. and Liggett Group, LLC, Appellants/Cross–Appellees, v. Richard BOATRIGHT and Deborah Boatright, Appellees/Cross–Appellants.
• Court: Florida District Court of Appeals

217 So.3d 166

PHILIP MORRIS USA INC. and Liggett Group, LLC, Appellants/Cross–Appellees,

v.Richard BOATRIGHT and Deborah Boatright, Appellees/Cross–Appellants.

Case No. 2D15–622

District Court of Appeal of Florida, Second District.

Opinion filed April 12, 2017

Adriana M. Paris, Terri L. Parker, and Sean T. Becker of Shook, Hardy & Bacon L.L.P., Tampa; Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC; and William P. Geraghty and Rachel A. Canfield of Shook, Hardy & Bacon L.L.P., Miami; for Appellant/Cross–Appellee Philip Morris USA Inc.

Karen H. Curtis of Clarke Silverglate, P.A., Miami; and Leonard A. Feiwus and Ann M. St. Peter–Griffith of Kasowitz, Benson, Torres & Friedman LLP, Miami, for Appellant/Cross–Appellee Liggett Group LLC.

Celene H. Humphries, Steven L. Brannock, Philip J. Padovano, Maegen P. Luka, and Thomas J. Seider of Brannock & Humphries, Tampa; and Scott Schlesinger, Steven Hammer, Jonathan R. Gdanski, and Brittany Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, for Appellees/ Cross–Appellants.

SILBERMAN, Judge.

In this Engle ¹ progeny case, Philip Morris USA Inc. and Liggett Group, LLC (the Defendants) appeal a final judgment in favor of Richard Boatright, who was a heavily addicted smoker, and his wife, Deborah Boatright, in the total amount of $32.75 million for compensatory and punitive damages. The jury found Philip Morris liable on theories of negligence, strict liability, fraudulent concealment, and conspiracy to commit fraud by concealment. The jury found Liggett liable for conspiracy to commit fraud by concealment. Philip Morris raises seven issues on appeal, including issues regarding comments in closing argument, the introduction of evidence, comparative fault, and punitive damages. Liggett raises three issues on appeal regarding the conspiracy verdict, joint and several liability, and punitive damages. We affirm on the main appeal.

The Boatrights cross-appeal regarding two issues related to comparative fault. We reverse on the cross-appeal. The trial court erred when it reduced the compensatory damages award by Mr. Boatright's comparative fault because the apportionment statute does not apply to an action based on an intentional tort. Therefore, we remand for the trial court to amend the judgment to reflect the full amount of the jury's verdict. In doing so, we certify conflict with R.J. Reynolds Tobacco Co. v. Schoeff , 178 So.3d 487 (Fla. 4th DCA 2015), review granted , No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), R.J. Reynolds Tobacco Co. v. Grossman , 211 So.3d 221 (Fla. 4th DCA 2017), and R.J. Reynolds Tobacco Co. v. Calloway , 201 So.3d 753 (Fla. 4th DCA 2016), review denied , No. SC16-1937, 2017 WL 1023712 (Fla. Mar. 16, 2017), to the extent that they hold that the core of these types of actions is grounded in negligence and that the comparative fault statute is applicable to reduce the verdict by the smoker's comparative fault.

The Boatrights brought this action against the Defendants seeking to recover damages for Mr. Boatright, who was a heavily addicted smoker, and for his wife of thirty years, Deborah Boatright, for loss of consortium. Mr. Boatright's addiction to these cigarettes ultimately led to his diagnosis of chronic obstructive pulmonary disease ("COPD") in 1992 and two double- lung transplants. Relevant here are the allegations of the second amended complaint for negligence, strict liability, fraudulent concealment, and conspiracy to fraudulently conceal. The trial court conducted a three-week-long trial.

The evidence presented showed that the Defendants and their co-conspirators in the tobacco industry intentionally designed addictive and deadly cigarettes and conspired for fifty years to hide the dangers of smoking cigarettes from the public. The tobacco industry spent billions of dollars to highly engineer cigarettes to promote addiction to nicotine so that smokers would buy more cigarettes. And the tobacco industry searched for new smokers by investing heavily in marketing that targeted youths. In internal company documents, the industry called these young people "replacement smokers" and "crops" to be harvested.

Mr. Boatright began smoking when he was twelve years old in direct response to youth marketing. He continued to smoke for the next thirty-eight years. From 1966 to 2004, Mr. Boatright smoked over 25,000 packs of cigarettes. The evidence showed that Mr. Boatright was a Marlboro man, smoking primarily Philip Morris cigarettes, and that he smoked a de minimis amount of Liggett cigarettes.

Mr. Boatright was a professional ballroom dancer but had the lungs of an eighty-eight-year-old man when he was diagnosed with COPD at the age of thirty-nine. He tried quitting cold turkey and tried prescription drugs, gum, and hypnosis to quit. After his COPD diagnosis, Mr. Boatright struggled for over eleven years but finally quit. Years later, he had to undergo two double-lung transplants. He was sixty-one at the time of trial and continues to suffer very serious side effects. For example, his colon ruptured within hours of arriving home after the first transplant, and he now has a colostomy bag. In order to be close to the Mayo Clinic for Mr. Boatright's many medical visits, Mrs. Boatright sold the house her father built and moved from Lakeland to Jacksonville.

The evidence also showed that the tobacco industry, including the Defendants, engaged in a conspiracy to conceal and misrepresent information about the addictiveness of nicotine and the serious health risks caused by smoking nicotine cigarettes. Industry executives agreed to attack the sources of health warnings and to cast doubt on the connection between smoking and disease. One of the many internal documents from Phillip Morris introduced into evidence stated that "doubt is our product." But at the same time, the tobacco industry pretended to be on a crusade to confirm the safety of its product and promised the American public that it would report back if it discovered anything. The industry's intent was not just to hide the truth; it was to create doubt to give addicted smokers an excuse to keep smoking.

The industry's efforts also included design features, such as filtered cigarettes, that worked to undermine a smoker's motivation and ability to quit smoking. In the 1950s, the Engle defendants began marketing filtered cigarettes to the public as a safer alternative. Mr. Boatright smoked filtered cigarettes. The tobacco industry concealed from the public that smokers of filtered cigarettes ingest more tar and other carcinogens than those who smoke unfiltered cigarettes. The Engle defendants all concealed the fact that they intentionally designed their filtered cigarettes to increase the dose of nicotine, thereby enhancing addictiveness to cigarettes and resulting in greater sales. The Defendants did not publicly admit that smoking nicotine cigarettes is addictive and causes COPD and other illnesses until after Mr. Boatright was diagnosed with COPD.

At the close of the Boatrights' case, the trial court directed a verdict in favor of Liggett as to the claims for negligence, strict liability, and fraudulent concealment. The case against Liggett went to the jury only on the conspiracy claim. With respect to comparative fault, the verdict form asked the jury to state what percentage of any fault it charged to Philip Morris and Mr. Boatright that was a legal cause of Mr. Boatright's COPD. The verdict form instructed the jury as follows:

In determining the total amount of damages, you should not make any reduction because of the responsibility of Richard Boatright. The court will enter a judgment based on your verdict and, in entering judgment, will make any reduction required by law to reduce the total amount of damages by the percentage of fault which you find is chargeable to Richard Boatright. If you find for the Plaintiffs on either of the intentional torts, then the amount of compensatory damages awarded to Plaintiffs will not be reduced by Richard Boatright's fault.

The jury found that Mr. Boatright was addicted to Philip Morris cigarettes and that his addiction caused his COPD. Further, the jury found that Philip Morris's concealment or omission of information regarding smoking cigarettes caused Mr. Boatright's COPD. The jury also found that the participation in an agreement to conceal by each of the Defendants was a legal cause of Mr. Boatright's COPD and thus found against both of the Defendants on the conspiracy claim.

The jury allocated 85% fault to Philip Morris and 15% fault to Mr. Boatright. The jury awarded a total of $15 million in compensatory damages. For Mr. Boatright, the jury awarded $2.5 million in economic damages and $10 million in damages for his past and future pain and suffering. For Mrs. Boatright, the jury awarded $2.5 million for her past and future loss of consortium. In the second phase of the trial, the jury awarded $19.7 million in punitive damages against Philip Morris and $300,000 against Liggett. We note that the jury's punitive damages award is less than the $20 million that the Boatrights' counsel requested against Philip Morris and less than the $5 million requested against Liggett.

The trial court denied all of Philip Morris's posttrial motions, except that it granted the request to reduce the compensatory damages award by Mr. Boatright's comparative fault but did not explain its reasoning. The trial court entered a final judgment under which the Defendants are jointly and severally liable for $10,625,000 in compensatory damages to Mr. Boatright and $2,125,000 in compensatory damages to Mrs. Boatright. In accordance with the jury's verdict, the judgment awards punitive damages of $19.7 million against Philip Morris and $300,000 against Liggett. We first address the issue of comparative fault that the Boatrights raised in their cross-appeal.

The Boatrights' Cross–Appeal

The Boatrights contend that the trial court erred when it reduced the compensatory damages...