Philip Morris USA, Inc. v. Rintoul

• Decision Date: 11 May 2022
• Docket Number: 4D20-1963
• Parties: PHILIP MORRIS USA, INC., a foreign corporation, R.J. Reynolds Tobacco Company, individually, and as successor by merger to Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, a foreign corporation, Lorillard Tobacco Company, a foreign corporation, Liggett Group LLC (f/k/a Liggett Group, Inc., f/k/a Liggett & Myers Tobacco Company ), and Vector Group Ltd., Inc. (f/k/a Brooke Group, Ltd.), a foreign corporation, Appellants, v. Bryan RINTOUL, as Personal Representative of the Estate of Edward Caprio, Appellee.
• Court: Florida District Court of Appeals

342 So.3d 656

PHILIP MORRIS USA, INC., a foreign corporation, R.J. Reynolds Tobacco Company, individually, and as successor by merger to Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, a foreign corporation, Lorillard Tobacco Company, a foreign corporation, Liggett Group LLC (f/k/a Liggett Group, Inc., f/k/a Liggett & Myers Tobacco Company ), and Vector Group Ltd., Inc. (f/k/a Brooke Group, Ltd.), a foreign corporation, Appellants,

v.Bryan RINTOUL, as Personal Representative of the Estate of Edward Caprio, Appellee.

No. 4D20-1963

District Court of Appeal of Florida, Fourth District.

[May 11, 2022]

Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, DC and Scott A. Chesin of Shook, Hardy & Bacon LLP, New York, NY, for appellant Philip Morris USA Inc.

Michael A. Carvin of Jones Day, Washington, DC, Eric L. Lundt, and Robert C. Weill of GrayRobinson, Fort Lauderdale, Charles R.A. Morse of Jones Day, New York, NY, and Kenneth M. Grose of Jones Day, Columbus, OH, for appellant R.J. Reynolds Tobacco Company.

Daniel E. Nordby, Steven M. Ebner and Michael A. Muñoz of Shutts & Bowen LLP, Tallahassee, Scott P. Schlesinger, Jonathan R. Gdanski, Steven J. Hammer and Brittany Barron of Schlesinger Law Offices, P.A., Fort Lauderdale, and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.

Mary L. Bonauto and Chris Erchull of GLBTQ Legal Advocates & Defenders, Boston, MA, Freddy Funes of Toth Funes PA, Miami, Andrew J. Fuller of Gelber Schachter & Greenberg, P.A., Miami, and Daniel B. Tilley, ACLU Foundation of Florida, Miami, for Amicus Curiae-GLBTQ Legal Advocates & Defenders and American Civil Liberties Union of Florida.

Per Curiam.

In this Engle¹ progeny wrongful death case, the defendants, Philip Morris ("PM") and R.J. Reynolds ("RJR"), appeal a final judgment in favor of the plaintiff, Bryan Rintoul, as Personal Representative for the Estate of Edward Caprio, awarding substantial compensatory damages to Rintoul as surviving spouse and punitive damages against both appellants. Of the multiple issues raised, we address three. First, we reverse the punitive damage award based upon Sheffield v. R.J. Reynolds Tobacco Co. , 329 So. 3d 114 (Fla. 2021). Second, we conclude that the admission of substantial evidence regarding JUUL Labs, Inc. ("JUUL") and e-cigarettes in support of Rintoul's punitive damage claim was harmful error, requiring a new trial on all issues. Third, we agree with RJR that Rintoul is not entitled to recover non-economic damages based upon Kelly v. Georgia-Pacific, LLC , 211 So. 3d 340 (Fla. 4th DCA 2017),² which relied on Tremblay v. Carter , 390 So. 2d 816 (Fla. 2d DCA 1980), because Rintoul was not married to the decedent when the symptoms of a tobacco-related illness manifested. We reject the trial court's creation of an exception to Kelly for a same-sex couple based upon Obergefell v. Hodges , 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). We conclude that Obergefell does not compel us to make an exception to either Kelly or Tremblay . Therefore, while we reverse all issues for a new trial, Rintoul may not claim compensatory damages as a "surviving spouse" based on those cases.

Facts

Decedent Edward Caprio, who was born in 1943, began smoking at age 15. In 1996, he was diagnosed with COPD, a disease caused by smoking. Later, he was diagnosed with lung cancer

and had surgery to remove portions of his right lung.

Caprio filed suit in 2007, alleging membership in the Engle class and asserting claims for strict liability, negligence, fraudulent concealment, and conspiracy. In 2015, while the case was pending, Florida legalized same-sex marriage. Shortly thereafter, Caprio married Bryan Rintoul, with whom he had been in a relationship since 1982. The case mis-tried in 2015. After his COPD worsened, Caprio died in 2018. Following Caprio's death, Rintoul moved to amend the complaint to substitute himself as plaintiff in his capacity as Caprio's personal representative and to assert a wrongful death claim, seeking compensatory damages for himself as a surviving spouse.

RJR objected to the motion for leave to amend in part, opposing Rintoul's amendment to seek surviving spouse loss of consortium non-economic damages as futile. It cited Kelly to argue that Rintoul married Caprio after his injuries occurred and therefore could not bring a wrongful death claim for non-economic damages because of Florida's long-standing rule that a spouse cannot marry into a cause of action. In response, Rintoul argued that the application of section 768.20, Florida Statutes (2019)—the Wrongful Death Act—in the manner advocated by RJR would violate his due process and equal protection rights.³

The trial court ruled in Rintoul's favor. It distinguished Kelly , finding that at the time of the diagnosis of COPD, i.e. , the "injury," Rintoul and Caprio could not be lawfully married in Florida because the state did not recognize same-sex marriages until 2015. Under the court's reasoning, applying the "marriage before injury" rule to Rintoul "would operate to discriminate against Rintoul and deprive him of the benefits and protections associated with a legal marriage status solely based on the fact that he was in a same-sex relationship and was unable to legally marry at the time." Thus, the trial court determined that the Wrongful Death Act would be unconstitutional as applied and granted Rintoul leave to amend to add the claim for non-economic damages. The result of this ruling was that at trial, Rintoul would have to prove and the jury would have to find that the couple would have married before 1996 had same-sex marriage been legal at the time.

Before trial, appellants moved to preclude evidence regarding JUUL, e-cigarettes, and other JUUL products. They argued no evidence showed that Caprio used JUUL products nor did JUUL have anything to do with Engle progeny cases. Appellants acknowledged that PM was a subsidiary of Altria Group, Inc. ("Altria"), and that Altria had made a $12.8 billion minority investment in JUUL, giving it a thirty-five percent minority interest in JUUL in December 2018. Yet PM did not control JUUL. RJR advised the court that it was not involved with JUUL. Both appellants argued that evidence of JUUL was improper and irrelevant to the determination of both compensatory and punitive damages. Additionally, any probative value of the evidence regarding JUUL was outweighed by its prejudicial value. Rintoul countered that the purpose of the JUUL evidence was to show "[p]erpetuation of the adolescent addiction industry and entitlement -- thus reprehensibility and entitlement to punitive damages."

Although PM put JUUL coupons in Marlboro packages, made their customer list available to JUUL for sending coupons, and shared shelf space at stores with JUUL products, PM's counsel argued that the JUUL relationship was not material to the issue of punitive damages because a defendant can only be punished for its own conduct that causes harm to a plaintiff, not a third party's conduct. Rintoul's own expert testified that JUUL products did not harm Caprio. Nevertheless, the trial court ruled the evidence admissible as to punitive damages entitlement.

At trial, a significant amount of testimony and documents involved JUUL, including press releases and documents from Altria. PM again objected to that evidence's introduction because Altria was not a party and was the parent company to PM. The trial court admitted the evidence, stating that the documents could be admitted because JUUL was part of a party opponent. Based upon these rulings, documents discussing concerns over the use of e-cigarettes among children were introduced. The trial court also allowed an expert to testify with respect to e-cigarettes and use by high school students. The expert also pointed out that JUUL was the leader in the e-cigarette market. Other testimony showed that former PM officers were now JUUL officers. Letters from the FDA to JUUL and to Altria were admitted regarding the FDA's concern over children's use of e-cigarettes. Rintoul's attack on JUUL continued during closing argument. In Phase I closing arguments, Rintoul's counsel directly invoked JUUL to argue that the case is "about cigarettes. It's about JUUL and JUUL devices. It's about the perpetuation ... of the adolescent ... addiction industry, which is the same as it ever was."

Ultimately, the case was submitted to the jury in Phase I where the jury found that Caprio was addicted to cigarettes which were a legal cause of his COPD. The jury attributed forty-nine percent negligence to both PM and RJR, and two percent negligence to Caprio. The jury's verdict awarded $200,000 in damages to the Estate and $9,000,000 to Rintoul for loss of consortium and pain and suffering. The jury also found by way of special interrogatory that Rintoul and Caprio would have been married before Caprio developed COPD had it been legal for them to do so. Finally, the jury found that punitive damages were warranted against both appellants.

In Phase II of the trial pertaining to the amount of any punitive damages award, Rintoul offered more evidence regarding JUUL over appellants’ objection. Appellants also objected to references to JUUL in closing argument. Rintoul's counsel requested $24 million as to each appellant. The jury assessed almost six times the amount which Rintoul requested—$74,122,719.43—in punitive damages against each appellant. Interestingly, that number matched Caprio's age at death, 74, and his date of birth, 12/27/1943.

The trial court entered final judgment on both the compensatory and punitive damages, including remitting the award of economic damages to $155,866.82 to comport with the evidence. Appellants subsequently moved for new trial and a reduction of the punitive damage award on various grounds, all of which were denied. This appeal followed.

Punitive Damages

In 1999, the...