R.J. Reynolds Tobacco Co. v. Brown

• Decision Date: 21 September 2011
• Docket Number: No. 4D09–2664.,4D09–2664.
• Citation: 70 So.3d 707
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Appellant,v.Jimmie Lee BROWN, as Personal Representative to the Estate of Roger Brown, Deceased, Appellee.
• Court: Florida District Court of Appeals

70 So.3d 707

R.J. REYNOLDS TOBACCO COMPANY, Appellant,

v.Jimmie Lee BROWN, as Personal Representative to the Estate of Roger Brown, Deceased, Appellee.

No. 4D09–2664.

District Court of Appeal of Florida, Fourth District.

Sept. 21, 2011.

Gordon James III, Eric L. Lundt and Jeannine Cline Jacobson of Sedgwick LLP, Fort Lauderdale, Stephen J. Kaczynski of Jones Day, Ohio, Stephanie E. Parker, John F. Yarber, John M. Walker of Jones Day, Georgia, and Gregory G. Katsas of Jones Day, Washington D.C., for appellant.Edward S. Schwartz and Phillip M. Gerson of Gerson & Schwartz, P.A., Miami, and Edward H. Zebersky of Zebersky Payne, Hollywood, for appellee.DAMOORGIAN, J.

This case is the first of the post- Engle cases to reach this court following the Florida Supreme Court's decision in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) (hereinafter “ Engle III ”).¹ The primary issue on appeal is how the Engle jury findings should be applied in individual cases.

Historical Background of Engle

Engle began as a nationwide smokers' class action lawsuit filed in 1994 against cigarette companies and tobacco industry organizations for injuries allegedly caused by smoking.² Liggett Group Inc. v. Engle, 853 So.2d 434, 440–41 (Fla. 3d DCA 2003) (hereinafter “ Engle II ”). The class encompassed “ ‘[a]ll United States citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’ ” Id. at 441. In 1996, the Third District affirmed the trial court's certification of the class, but reduced the class to include Florida smokers only. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 42 (Fla. 3d DCA 1996) (hereinafter “ Engle I ”).

In February 1998, the trial court issued a trial plan dividing the proceedings into three phases. Phase I consisted of a year-long trial to consider the issues of liability and entitlement to punitive damages for the class as a whole. Engle III, 945 So.2d at 1256. The jury considered “common issues relating exclusively to the defendants' conduct and the general health effects of smoking.” Id. The verdict form in Phase I asked the jury to answer “yes” or “no” to a series of questions for specific time periods for each of the defendants. At the conclusion of Phase I, the jury rendered a verdict against the tobacco defendants (hereinafter “Tobacco”) on almost every count. Id. at 1256–57.³

Engle Jury Findings

The Phase I jury made the following findings (hereinafter “ Engle findings”), which the Florida Supreme Court approved: ⁴

1 [generic causation] (that smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer), 2 [addiction/dependence] (that nicotine in cigarettes is addictive), 3 [strict liability] (that [Tobacco] placed cigarettes on the market that were defective and unreasonably dangerous), 4(a) [fraud by concealment] (that [Tobacco] concealed or omitted material information not otherwise known or available knowing the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both), 5(a) [civil conspiracy-concealment] (that [Tobacco] agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment), 6 [breach of implied warranty] (that [Tobacco] sold or supplied cigarettes that were defective), 7 [breach of express warranty] (that [Tobacco] sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by [Tobacco] ), and 8 [negligence] (that [Tobacco was] negligent).Id. at 1276–77.

“In Phase I, the jury decided issues related to Tobacco's conduct but did not consider whether any class members relied on Tobacco's misrepresentations or were injured by Tobacco's conduct.” Id. at 1263. “The questions related to some, but not all of the elements of each legal theory alleged.” Engle II, 853 So.2d at 450. Critical elements of liability, such as reliance and legal causation, were not determined by the Phase I jury. Id. Accordingly, the Phase I jury did not determine Tobacco's ultimate liability to any individual class member. Id.; Engle III, 945 So.2d at 1263.

In Phase II, the same jury determined that Tobacco's conduct was the legal cause of three individual class representatives' injuries, awarding $12.7 million in compensatory damages offset by their comparative fault. Engle II, 853 So.2d at 441. Thereafter, the jury determined the lump-sum amount of punitive damages for the entire class to be $145 billion, without allocating that amount to any class member. Id.

In Phase III, new juries were to decide the individual liability and compensatory damages for each of the estimated 700,000 class members. Id. at 442.

Before Phase III proceedings began, Tobacco appealed the verdicts. Id. In Engle II, the Third District reversed the final judgment with instructions that the class be decertified. Id. at 440. The court concluded that class action treatment was inappropriate because “the plaintiffs smokers' claims [we]re uniquely individualized and [could not] satisfy the ‘predominance’ and ‘superiority’ requirements imposed by Florida's class action rules.” Id. at 444 (footnote omitted). The class appealed the Engle II decision to the Florida Supreme Court. See Engle III, 945 So.2d at 1254.

In Engle III, the Florida Supreme Court made several rulings relevant to the instant case. First, the court decertified the class prospectively, finding class treatment no longer viable for Phase III “because individualized issues such as legal causation, comparative fault, and damages predominate,” and allowed class members to file individual lawsuits within one year of the court's mandate. Id. at 1268, 1277. Second, the court retained the Phase I jury findings and gave these “common core findings ... res judicata effect” in any subsequent individual action by class members. Id. at 1269. It is these findings and their application to the instant case we now address.

The Present Case

The decedent, Roger Brown was a long time smoker of Camel, Pall Mall, and Winston cigarettes ⁵ who developed lung and esophageal cancer. Mr. Brown's death certificate listed esophageal cancer as the cause of death. Camel and Winston cigarettes were brands manufactured and sold by R.J. Reynolds (hereinafter “RJR”); Pall Malls were manufactured by Brown and Williamson, which was later purchased by RJR. Mr. Brown's widow sued RJR as an Engle class member seeking damages for her husband's death. She filed a complaint against RJR for strict liability, negligence, fraud by concealment, and civil conspiracy-fraud by concealment. At issue in this appeal is the viability of Mrs. Brown's negligence and strict liability claims.⁶

The case proceeded to trial in two phases. In the first phase, the jury was asked to decide whether Mr. Brown was a member of the Engle class, i.e. whether he was addicted to RJR cigarettes containing nicotine; and, if so, was his addiction a legal cause of his death. Mrs. Brown presented evidence from two experts, Dr. Neil Benowitz and Dr. Michael Cummings, who testified generally about smoking and nicotine addiction.

In particular, Dr. Benowitz testified concerning the medical standards for diagnosing addiction. He testified regarding the Fagerstrom Test for Nicotine Dependence, which consists of several questions and is the most commonly used test to assess nicotine addiction. The test examines (i) how soon an individual smokes the first cigarette upon waking up; (ii) whether it is difficult to smoke when the person is not supposed to; (iii) how many cigarettes are smoked per day; and (iv) the loss of control of drug use.

He also testified about certain predictors of addiction. The shorter the time interval before a person smokes upon waking up, especially if first thing in the morning, the more highly addicted the person. An individual who smokes ten or more cigarettes per day, and never attempts to quit smoking, does not need to attempt to quit to be considered addicted to nicotine because a vast majority of individuals are, in fact, addicted. Another strong indicator of addiction is if a person continues to smoke after being diagnosed with a disease caused by smoking. On cross-examination, Dr. Benowitz admitted that he had no personal knowledge about the facts or Mr. Brown in the instant case.

Following his testimony, Mrs. Brown and her daughter testified about Mr. Brown's smoking history. Mr. Brown had been smoking since he was twelve years old. At some point, Mr. Brown switched from smoking Camels to smoking Pall Malls, Marlboros and Winstons. He smoked a cigarette first thing in the morning, and smoked about three cigarettes before brushing his teeth. He smoked a pack and a half of cigarettes per day from the time he met his wife at age twenty-two until he died. He smoked at all hours of the day and night. He had attempted to quit, but simply could not stop. When he was diagnosed with cancer, he did not stop smoking even though the doctors told him that smoking caused his cancer. Both Mrs. Brown and her daughter testified that Mr. Brown was addicted to cigarettes.

Dr. Cummings testified next, essentially corroborating the testimony of Dr. Benowitz with respect to the behavioral indicia of addiction. He explained that if the smoker was unavailable, he relied on information from people who knew...