Philip Morris USA Inc. v. Martin

• Decision Date: 12 December 2018
• Docket Number: No. 4D17-574,4D17-574
• Citation: 262 So.3d 769
• Parties: PHILIP MORRIS USA INC. and R.J. Reynolds Tobacco Company, Appellants, v. Stanley MARTIN, as Personal Representative of the Estate of Carole Martin, Appellee.
• Court: Florida District Court of Appeals

262 So.3d 769

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

v.Stanley MARTIN, as Personal Representative of the Estate of Carole Martin, Appellee.

No. 4D17-574

District Court of Appeal of Florida, Fourth District.

[December 12, 2018]

William L. Durham II and Val Leppart of King & Spalding LLP, Atlanta, GA, for appellant R.J. Reynolds Tobacco Co.

Scott A. Shesin and Michael Rayfield of Mayer Brown LLP, New York, NY, and Joseph H. Lang, Jr. of Carlton Fields Jorden Burt, P.A., Tampa, for appellant Philip Morris USA Inc.

Richard B. Rosenthal of Richard B. Rosenthal, P.A., Miami, and Eric S. Rosen of Kelley Uustal, PLC, Fort Lauderdale, for appellee.

Artau, Edward L., Associate Judge.

In this Engle¹ wrongful death case, the defendants, Philip Morris and R.J. Reynolds, appeal a final judgment awarding the plaintiff just under $3.7 million in compensatory damages (the $5.4 million assessed by the jury, less a 32% comparative fault reduction), and $650,000 in punitive damages. The plaintiff cross-appeals the trial court's reduction of the compensatory damages award based on the decedent's comparative fault.

On the main appeal, we hold that, because the specific tobacco-related disease that caused the Engle class member's death and gave rise to this claim manifested after October 1, 1999, the trial court erred by declining to apply the post-1999 version of section 768.73, Florida Statutes, which bars successive awards of punitive damages under the circumstances here. We therefore reverse the trial court's ruling on that issue, but affirm on all other issues raised in the main appeal.

On the cross-appeal, we reverse and remand for reinstatement of the entire amount of compensatory damages found by the jury.

Factual Background

The plaintiff and his late wife, Carole Martin, moved to Florida in 1992, but split their time between New York and Florida.

Mrs. Martin suffered a smoking-related heart attack

in 1995. She later developed lung cancer in 2003, and ultimately died of the cancer in 2004.

In 2007, the plaintiff brought this Engle wrongful death lawsuit against the defendants, asserting claims of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. The trial court granted the plaintiff leave to amend his complaint to add claims for punitive damages.

Before trial, the defendants sought to invoke the current version of section 768.73(2)(a), Florida Statutes, which generally bars successive punitive damages awards against a defendant "in any action alleging harm from the same act or single course of conduct." The defendants argued that section 768.73(2)(a) barred a punitive damages award because: (1) the plaintiff's claim arose after the October 1, 1999 effective date of the statute; and (2) each defendant had already paid over $150 million in punitive damages in tobacco lawsuits based on the same conduct. The trial court deferred ruling on this issue until after trial.

At the conclusion of the trial, the jury found that Mrs. Martin was "a legal citizen and resident of Florida on or before November 21, 1996," found in favor of the plaintiff on each claim, determined that Mrs. Martin was 32% at fault, found that the plaintiff had suffered approximately $5.4 million in compensatory damages, assessed $450,000 in punitive damages against Philip Morris, and assessed $200,000 in punitive damages against R.J. Reynolds.

In post-trial motions, the defendants argued that the plaintiff's claim for punitive damages was barred by the current version of section 768.73(2)(a). The trial court denied the defendants' post-trial motions.

The trial court entered final judgment in favor of the plaintiff, but reduced the compensatory damages award to just under $3.7 million to account for the jury's comparative fault determination. This appeal and cross-appeal ensued.

Main Appeal

We first address the defendants' argument that the trial court erred by refusing to apply the post-1999 version of section 768.73. The defendants contend that the post-1999 version of the statute applies because the plaintiff's cause of action arose after 1999. Specifically, the defendants contend that the plaintiff's wrongful death cause of action arose when Mrs. Martin died in 2004. Alternatively, the defendants contend that even if the plaintiff's cause of action arose when Mrs. Martin developed lung cancer

in 2003, the post-1999 statute would still apply.

The plaintiff argues in response that the post-1999 statute does not apply here, because (1) the wrongful death action relates back to the 1994 Engle class action complaint, and (2) the date of the applicable statutory law necessarily had to be before the November 1996 Engle class membership cut-off date. Additionally, the plaintiff argues that the post-1999 statute's limitation on successive punitive damages awards is unconstitutional.

A trial court's ruling on an issue of statutory interpretation is subject to de novo review. Headley v. City of Miami , 215 So.3d 1, 5 (Fla. 2017).

Section 768.73(2)(a), Florida Statutes, as amended in 1999, provides that "punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant ... in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages." § 768.73(2)(a), Fla. Stat. (1999).

The amended version of section 768.73 applies "to all causes of action arising after the effective date of [the] act," which was October 1, 1999. § 768.73(5), Fla. Stat. (1999) ; Ch. 99-225, § 23, Laws of Fla. Before the 1999 amendment, section 768.73 had no such bar on successive awards of punitive damages.

The question for this court, therefore, is whether the plaintiff's cause of action arose after October 1, 1999.

In civil cases, the applicable version of a statute is ordinarily the one "in effect when the cause of action arose." D'Angelo v. Fitzmaurice , 863 So.2d 311, 314 n.9 (Fla. 2003).

This court has previously concluded that "Florida law does not distinguish between when a cause of action accrues and when a cause of action arises." See Lumbermens Mut. Cas. Co. v. August , 509 So.2d 352, 353 (Fla. 4th DCA 1987), quashed , 530 So.2d 293 (Fla. 1988).² Moreover, Black's Law Dictionary defines the term "accrue" as meaning "[t]o come into existence as an enforceable claim or right; to arise." Accrue , BLACK'S LAW DICTIONARY (10th ed. 2014). We quote these sources to emphasize that the terms "accrue" and "arise" are synonymous with respect to when a cause of action comes into existence, and we will be using those terms interchangeably in this opinion.

As a general proposition, "[a] cause of action for wrongful death accrues on the date of [the] decedent's death." Nationwide Mut. Fire Ins. Co. v. MacDonald , 645 So.2d 1057, 1058 (Fla. 4th DCA 1994). However, in Engle wrongful death cases, this court has looked to the time when the injury causing the smoker's death manifested in determining which version of section 768.73 applied. R.J. Reynolds Tobacco Co. v. Schoeff , 178 So.3d 487, 492 (Fla. 4th DCA 2015) ("Plaintiff's cause of action accrued in 1994, when Mr. Schoeff was diagnosed with lung cancer

. As such, the 1994 version of the statute governs.") (citation omitted), quashed on other grounds , 232 So.3d 294 (Fla. 2017) ; R.J. Reynolds Tobacco Co. v. Buonomo , 138 So.3d 1049, 1052 (Fla. 4th DCA 2013) (holding that the 1995 version of section 768.73 applied in an Engle wrongful death case where the smoker began suffering from COPD in 1995, which caused his death in 2008: "It is ... the 1995 version of the statute that governs the instant case—a fact the parties do not dispute."), quashed on other grounds , Nos. SC14-81 & SC14-83, 41 Fla. L. Weekly S113, 2016 WL 374082 (Fla. Jan. 26, 2016).

Similarly, in R.J. Reynolds Tobacco Co. v. Allen , 228 So.3d 684, 689 (Fla. 1st DCA 2017), the First District reasoned that, although a cause of action for wrongful death usually accrues upon the decedent's death, "Engle -progeny cases are different." The Allen court held that the pre-1999 version of section 768.73 applied to an Engle progeny personal injury suit that converted to a wrongful death action after the smoker died. Id. at 689–91.

In Allen , the smoker's COPD manifested before the November 21, 1996 Engle class cut-off date, the smoker's personal injury suit was commenced in 2007, and the smoker's suit was converted into a wrongful death action after she died in 2009. Id. at 689–90. In rejecting the defendants' argument that the post-1999 version of the statute applied, the First District reasoned that: "[a]fter her causes of action accrued , Mrs. Allen had a substantive right to seek punitive damages under the then-existing standard. Application of the post–1999 amendments to the punitive damages statute to Appellee's derivative claim would impair those substantive rights." Id. at 690 (emphasis added) (citation omitted).

In R.J. Reynolds Tobacco Co. v. Evers , 232 So.3d 457 (Fla. 2d DCA 2017), the Second District extended Allen and held that the pre-1999 version of section 768.73 applied to an Engle progeny suit that was initially brought as a wrongful death action after the smoker died of lung cancer

in 2007. The Second District reasoned that the plaintiff's "wrongful death action, like all Engle -progeny complaints, relates back to the 1994 Engle class-action complaint." Id. at 462. Thus, the Second District concluded that "[w]hile [the plaintiff] did not file the wrongful death action until 2007 when [the smoker] died, her right to do so was based on [the smoker's] status as an Engle class member, i.e., [the smoker's] manifestation of a tobacco-related disease or medical condition prior to November 21, 1996." Id. at 463.

Notably, the wrongful death causes of action in both Allen and Evers related back to a manifestation of a tobacco-related disease which...