R.J. Reynolds Tobacco Co. v. Townsend

• Decision Date: 14 February 2012
• Docket Number: No. 1D10–4585.,1D10–4585.
• Citation: 90 So.3d 307
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Lyantie TOWNSEND, as Personal Representative of the Estate of Frank Townsend, Appellee.
• Court: Florida District Court of Appeals

90 So.3d 307

R.J. REYNOLDS TOBACCO COMPANY, Appellant,

v.Lyantie TOWNSEND, as Personal Representative of the Estate of Frank Townsend, Appellee.

No. 1D10–4585.

District Court of Appeal of Florida,

First District.

Feb. 14, 2012.

Gregory G. Katsas, of Jones Day, Washington, D.C.; Robert B. Parrish, Charles M. Trippe, and David C. Reeves, of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville; Stephanie E. Parker, John F. Yarber, and John M. Walker, of Jones Day, Atlanta, Georgia; Hada de Varona Haulsee, of Womble, Carlyle, Sandridge & Rice, PLLC, Winston–Salem, North Carolina, for Appellant.

Steven Brannock, Celene H. Humphries, and Tyler K. Pitchford, of Brannock & Humphries, Tampa; Gregory D. Prysock, of Morgan & Morgan, P.A., Jacksonville; Keith R. Mitnik, of Morgan & Morgan, P.A., Orlando, for Appellee.

VAN NORTWICK, J.

In this Engle¹ progeny case, R.J. Reynolds Tobacco Company (RJR) appeals a final judgment following a jury verdict awarding Appellee, Lyantie Townsend, as personal representative of the estate of Frank Townsend, her late husband, $10.8 million in compensatory damages and $80 million in punitive damages for the death of Mr. Townsend. Mr. Townsend died from lung cancer and was a long-time smoker of cigarettes manufactured by RJR. The jury found RJR 51% responsible for Mr. Townsend's death and, based on that apportionment of fault (and after denying RJR's motion for new trial or remittitur), the trial court entered judgment against RJR for $46.308 million, which comprised approximately $5.5 million in compensatory damages and $40.8 million in punitive damages.²

In this appeal, RJR contends that 1) it is entitled to a new trial because of several improper comments by Appellee's counsel in closing argument; 2) the use of the Engle findings to establish elements of Appellee's claims violates Florida law and due process; 3) Appellee failed to prove reasonable reliance by Mr. Townsend on any statement or act of RJR or its predecessor companies; 4) the compensatory damage award is excessive; and 5) the punitive damage award is excessive and violates due process.

With respect to the “closing argument” issue, we hold that by waiting until the end of closing argument to object to the argument and move for mistrial and by failing to object specifically to distinct portions of the argument, RJR failed to preserve this issue for appellate review. Engle, 945 So.2d at 1271–74;see also Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000). Accordingly, we find no abuse of discretion in the denial of the motion for new trial based on the closing argument. We affirm the second and third issues based on Martin, 53 So.3d at 1060.³ For the reasons that follow, we affirm the compensatory damage award and we reverse and remand the punitive damage award for the limited purpose of permitting Appellee to choose between a new jury trial solely to determine punitive damages or acceptance of a remittitur judgment to be determined by the trial court in accordance with this opinion.

COMPENSATORY DAMAGES

RJR contends the compensatory damage award is excessive and, therefore, the trial court should have granted its motion for a new trial on damages or remittitur. We review the trial court's denial of the motion for an abuse of discretion. See Engle, 945 So.2d at 1263;McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003).

The purpose of compensatory damages is “to make the injured party whole to the extent that it is possible to measure his injury in terms of money.” Mercury Motors Exp., Inc. v. Smith, 393 So.2d 545, 547 (Fla.1981); see also Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (explaining that compensatory damages “are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct”). The compensatory damage award in this case comprises only non-economic damages— e.g., mental pain and suffering and loss of consortium—suffered by Appellee due to the death of her husband, Mr. Townsend. These damages are inherently difficult to measure and, as explained by the Florida Supreme Court, our judicial system places great faith in the jury's ability to assess the amount of these damages:

Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right.

Braddock v. Seaboard Air Line R. Co., 80 So.2d 662, 668 (Fla.1955); accord Citrus County v. McQuillin, 840 So.2d 343, 348 (Fla. 5th DCA 2003) (“Who can place a dollar value on a human life, measured by the loss and grief of a loved one? That difficult decision is generally one for the jury or fact finder, not the appellate court.”).

“The fact that a damage award is large does not in itself render it excessive nor does it indicate that the jury was motivated by improper consideration in arriving at the award.” Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361, 365 (Fla.1974). And “[n]ot every verdict which raises a judicial eyebrow should shock the judicial conscience.” Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970). A verdict should not be declared excessive “merely because it is above the amount which the court itself considers the jury should have allowed.” Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977). The verdict should be disturbed only when “it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Id. at 1184–85.

These general principles are consistent with the legislative policy expressed in section 768.74, Florida Statutes (2009). This statute recognizes that “the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion.” § 768.74(6), Fla. Stat. But the statute also requires courts to give “close scrutiny” to damage awards, section 768.74(3), Florida Statutes, and it lists several criteria for the court to consider in determining whether an award “exceeds a reasonable range of damages.” § 768.74(5), Fla. Stat. The criteria in subsection (5) include whether the award is “supported by the evidence,” whether the award “bears a reasonable relation to the amount of damages proved and the injury suffered,” and whether the amount of the award is “indicative of prejudice, passion, or corruption” on the part of the jury.

Although the $10.8 million compensatory damage award in this case ⁴ is higher than the non-economic damage awards affirmed by this Court in the other Engle progeny cases that we have reviewed to date ⁵, we cannot say that the award obviouslyexceeds the “reasonable range within which the jury may properly operate.” Bould, 349 So.2d at 1185. The highest post- Engle compensatory damages awards that have passed appellate muster thus far are the $7.8 million award in Liggett Group, 60 So.3d at 1078, and the $5 million award in Martin, 53 So.3d at 1066. We are persuaded from our review of the record that a proper evidentiary basis existed to justify the award and that, despite its size, it was not based merely on passion or prejudice.

The jury observed Appellee testify and heard her first-hand account of her life with Mr. Townsend. She and Mr. Townsend were wed young in 1956, enjoyed a very close relationship during their 39–year marriage, and were always together until Mr. Townsend became ill. Appellee was required to remain in Ocala to work to provide support for the couple while Mr. Townsend traveled to Chicago for medical treatment and surgery relating to his lung cancer, and then she cared for him as he lay dying during the final six months. Appellee described Mr. Townsend's suffering and premature death at age 59 from smoking, a tragic circumstance that had, and is likely to continue to have, an acute impact on Appellee for the rest of her life. Mr. Townsend was diagnosed just when Appellee was about to join him in retirement and realize their life-long dream of traveling together. Appellee has not remarried.

With this evidence, the jury was entrusted with the “difficult decision” of effectively placing a dollar value on Mr. Townsend to Appellee. See McQuillin, 840 So.2d at 348. Although the $10.8 million awarded by the jury is certainly at the outer limit of reasonableness for a case such as this, the award is not so inordinately large that it shocks our collective judicial conscience. Cf. id. at 347 (affirming $4.4 million non-economic damage award, but noting the award was “on the outer limit in size”). Judged by the factors set forth in section 768.74(5), Florida Statutes (2009), the amount of compensatory damages in this case is not beyond reason. Accordingly, we find no abuse of discretion in the trial court's refusal to second-guess the jury's award of compensatory damages.

PUNITIVE DAMAGES

RJR contends the punitive damage award in this case is excessive and violates due process.⁶ Our review of this issue is de novo. See Engle, 945 So.2d at 1263;Martin, 53 So.3d at 1071.

The purpose of punitive damages is “not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future.” Owens–Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla.1999). The amount of punitive damages to be awarded is an issue left to the discretion of the jury. Id. at 486–87 (quoting Wackenhut Corp. v. Canty, 359 So.2d 430, 435–36 (Fla.1978)). However, the imposition of a punitive damage award is subject to constitutional limitations because “[t]he Due...