Philip Morris USA Inc. v. Cohen

• Citation: 340 So.3d 498
• Decision Date: 08 June 2022
• Docket Number: 4D21-467
• Parties: PHILIP MORRIS USA INC., Appellant, v. Barbara COHEN, as personal representative of the Estate of Rita Shifrin, Appellee.
• Court: Court of Appeal of Florida (US)

340 So.3d 498

PHILIP MORRIS USA INC., Appellant,

v.Barbara COHEN, as personal representative of the Estate of Rita Shifrin, Appellee.

No. 4D21-467

District Court of Appeal of Florida, Fourth District.

[June 8, 2022]

Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, DC, Kenneth J. Reilly and Hassia T. Diolombi of Shook, Hardy & Bacon L.L.P., Miami, and Jennifer M. Voss of Shook, Hardy & Bacon L.L.P., Tampa, for appellant.

Jeffrey V. Mansell and Bard D. Rockenbach of Burlington and Rockenbach, P.A., West Palm Beach, and Scott P. Schlesinger, Jonathan R. Gdanski, and Brittany C. Barron of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellee.

Levine, J.

Philip Morris appeals an award of $559,690 in attorneys’ fees imposed as a sanction based on section 57.105(1) and Moakley v. Smallwood , 826 So. 2d 221 (Fla. 2002), after finding that several statements made by Philip Morris's counsel during opening statements were in bad faith. We find that the trial court erred by awarding attorneys’ fees for the entire trial because "the amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney." Moakley , 826 So. 2d at 227. Since the trial court made "express finding[s] of bad faith conduct" by Philip Morris's counsel only as to the opening statement, and did not make the same "bad faith" determinations about other conduct during the trial, we find that the trial court failed to follow the requirements of Moakley by demonstrating how the specific bad faith conduct in the beginning of the trial was directly related to all the plaintiff's attorneys’ fees for the entire trial. Thus, as a result, we reverse the sanctions awarded by the trial court.¹ We also find the cross-appeal moot based on our reversal in the direct appeal.

The plaintiff, as personal representative of the decedent's estate, sought compensatory and punitive damages against Philip Morris for wrongful death. Philip Morris stipulated that the decedent was addicted to cigarettes, but disputed whether the decedent's addiction was a legal cause of her COPD, whether the COPD manifested prior to the November 21, 1996, deadline for filing Engle² progeny cases, and whether the decedent's COPD caused her death. Philip Morris also stipulated to trying phase 1 liability and phase 2 punitive damages together.

The trial court highlighted the following statements made by Philip Morris's counsel in opening in its order finding "bad faith." During opening statements, Philip Morris contrasted a 1993 radiology report containing the decedent's COPD diagnosis, which the plaintiff referenced in her opening, with a 1995 medical record from a different doctor that did not mention COPD. Philip Morris then told the jury that the plaintiff would not call the doctor who authored the 1993 report. Specifically, Philip Morris stated: "That was written by Dr. Fabian. Will they be bringing you that testimony about that one paragraph? No."

The plaintiff objected, arguing that Philip Morris knew that Dr. Fabian was deceased. The trial court asked the plaintiff if she wanted a mistrial, and the plaintiff said no. The trial court sustained the objection and gave a curative instruction that the doctor had passed away and that both sides have equal access to subpoena witnesses.

Several times during opening, Philip Morris also characterized the plaintiff's case by referring to the plaintiff's "position" and "theory" of the case. For instance, Philip Morris stated: "One theory is that [the decedent] was defrauded and started smoking back in the ’40s.... Another theory is that she would have quit smoking in time to avoid getting COPD if she had not relied on something Philip Morris said in a 1994 advertisement." (emphasis added). Philip Morris also suggested that "the plaintiff's position " is that "her primary care doctor[ ] just forgot" to include the plaintiff's COPD diagnosis in a 1995 medical record. (emphasis added). Another time, Philip Morris stated: "Can't or won't quit, that's the position that the plaintiff took in 2010." (emphasis added). The trial court sustained the plaintiff's objections. At least twice, the trial court advised Philip Morris during sidebar to frame its opening statements in terms of what the evidence would show and not to talk about the plaintiff's position or frame the plaintiff's case.

Next, Philip Morris misrepresented that the plaintiff was seeking $81,000 in total compensatory damages, when in fact this figure came from the plaintiff's interrogatory answer for only loss of support and services. Philip Morris stated, "And the interesting thing about compensatory damages in this claim is the plaintiff hasn't told us what she thinks all of her damages are." The trial court sustained the plaintiff's objection. Philip Morris continued, "When we ask the plaintiff what are the damages, we were told, ‘Undetermined at this time.’ " The trial court again sustained the plaintiff's objection. Philip Morris then stated, "18 months later. That's what we were told her compensatory damages are." At the time, Philip Morris was showing a slide with the amount of $81,000.

The plaintiff then asked the trial court for an order to show cause against counsel for violating the trial court's order and also requested a "provisional mistrial." The trial court stated, "There's no provisional mistrial." After stating that it was "speechless," the trial court sustained the objection, struck the comments about damages, and instructed Philip Morris to rephrase its statements.

Philip Morris moved on to discussing punitive damages, stating that "they are over and above whatever is awarded for compensatory damage, which is what we just talked about." The plaintiff objected, complaining that Philip Morris again pointed to the $81,000 figure, misleading the jury. The plaintiff moved to show cause why Philip Morris should not be in direct contempt. The plaintiff stated that she "can't get a fair trial," but also stated that she did not want a mistrial. The trial court recognized that Philip Morris was "directly violating my orders," but declined to hold counsel in contempt. The trial court gave a curative instruction, striking the reference to the $81,000 being the plaintiff's compensatory claim.

Philip Morris next mentioned other lawsuits involving e-cigarettes. Philip Morris stated, "Philip Morris can't be punished for any harm that JUUL caused other people." Philip Morris continued, "And the evidence will be that people who are harmed by JUUL can and have brought their own lawsuits against JUUL—"³ The plaintiff objected, asked the trial court to reserve ruling on a motion for mistrial, and again asked for a motion to show cause. The trial court sustained the objection and gave a curative, advising the jury that other pending lawsuits should not affect its decision. The trial court reserved ruling on "additional sanctions." After a brief recess, the trial court then stated there would be entitlement to section 57.105 sanctions due to Philip Morris's conduct during its opening statement.

During deliberations, the jury sent a note that it could not get past question 1, which asked the jury to determine whether the decedent's addiction to cigarettes containing nicotine was a legal cause of her COPD which was manifested prior to November 21, 1996. The trial court gave the jury an Allen charge. After the jury again indicated it could not come to a consensus, the trial court then granted a directed verdict on question 1.

The next day, the jury sent another note indicating it was unable to agree on questions 2 and 3. Question 2 asked the jury "whether [the decedent] reasonably relied to her detriment on a statement, concealment, or omission by Philip Morris USA, Inc. not otherwise known or available concerning the health effects and/or addictive nature of cigarettes and, if so, whether such reliance was a legal cause of her COPD and death." Question 3 asked "whether [the decedent] reasonably relied to her detriment on an act or statement made in furtherance of defendant's agreement to conceal or omit material information not otherwise known concerning the health effects and/or addictive nature of cigarettes, and, if so, whether such reliance was a legal cause of her COPD and death." After confirming the jury was unable to reach a verdict, the trial court declared a mistrial and dismissed the jury.

On March 9, 2020, the trial court entered a sanction order against Philip Morris, finding that Philip Morris's actions "during opening are in Bad Faith." (emphasis added). The trial court further found that "the conduct was willful and deliberate" given the repeated violations of numerous rulings and instructions. The order recounted Philip Morris's improper statements during opening: telling the jury that the plaintiff was not calling Dr. Fabian as a witness; continuing to characterize the plaintiff's case contrary to the court's instructions; informing the jury about other pending lawsuits for e-cigarettes; and mischaracterizing an interrogatory answer to make it appear as if the plaintiff was claiming $81,000 in total economic damages.

Although the trial court confined its finding of bad faith conduct entirely to the opening statement, the trial court also noted other instances of improper conduct during the trial, without finding those other acts to be in "bad faith." The trial court found that Philip Morris violated two pretrial rulings during cross-examination of a witness, misrepresented the record, improperly attacked counsel, and disrespected and attacked the court. The court imposed sanctions on Philip Morris under section 57.105(1) in lieu of contempt, reserving jurisdiction to determine the amount or type of sanctions.

During a March 10 sanction hearing, the plaintiff requested only an award of attorneys’ fees for the entire trial. The plaintiff did not...