R.J. Reynolds Tobacco Co. v. Calloway

• Decision Date: 23 September 2016
• Docket Number: No. 4D12–3337.,4D12–3337.
• Parties: R.J. REYNOLDS TOBACCO COMPANY, individually and as successor-by-merger to Lorillard Tobacco Company, Philip Morris USA Inc., and Liggett Group LLC, Appellants, v. Marvine CALLOWAY, as Personal Representative of the Estate of Johnnie Calloway, Appellee.
• Court: Florida District Court of Appeals

201 So.3d 753

R.J. REYNOLDS TOBACCO COMPANY, individually and as successor-by-merger to Lorillard Tobacco Company, Philip Morris USA Inc., and Liggett Group LLC, Appellants,

v.Marvine CALLOWAY, as Personal Representative of the Estate of Johnnie Calloway, Appellee.

No. 4D12–3337.

District Court of Appeal of Florida, Fourth District.

Sept. 23, 2016.

Benjamine Reid and Jeffrey A. Cohen of Carlton Fields Jorden Burt, P.A., Miami, Gregory G. Katsas of Jones Day, Washington, D.C., and Charles R.A. Morse of Jones Day, New York, N.Y., for appellant/cross-appellee R.J. Reynolds Tobacco Company.

Makai Fisher of Shook, Hardy & Bacon, L.L.P., San Francisco, CA, Geri E. Howell of Shook, Hardy & Bacon, L.L.P., Miami, and Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for appellant/cross-appellee Philip Morris USA Inc.

Karen H. Curtis of Clarke Silverglate, P.A., Miami, and Kelly Anne Luther and Ann M. St. Peter–Griffith of Kasowitz, Benson, Torres & Friedman LLP, Miami, for appellant/cross-appellee Liggett Group LLC.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Scott P. Schlesinger, Jonathan Gdanski and Steven J. Hammer of Schlesinger Law Offices, P.A., Fort Lauderdale, John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, and David J. Sales, Jupiter, for appellee/cross-appellant.

Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A., Miami, for Amicus Curiae The Engle Plaintiffs' Law Firms.

ON MOTIONS FOR REHEARING, CLARIFICATION, CERTIFICATION, AND REHEARING EN BANC

KLINGENSMITH

, J.

Plaintiff moves for rehearing, clarification, or certification. Defendants move for rehearing and rehearing en banc. We grant the motion for rehearing en banc, withdraw our previous opinion, and substitute this opinion in its place. In doing so, we reverse the final judgment and remand the case for a new trial.

Tobacco defendants, R.J. Reynolds Tobacco Company (“RJ Reynolds”), Philip Morris USA Inc. (“Philip Morris”), Lorillard Tobacco Company (“Lorillard”),¹ and Liggett Group LLC (“Liggett”), appeal a multi-million dollar final judgment. They raise several issues common to all and some individually.

They jointly argue the trial court erred in denying their motions for new trial based upon the repeated inflammatory arguments of plaintiff's counsel. They jointly argue the court erred in instructing the jury on the fraud-based claims. They jointly argue the compensatory and punitive damage awards must be either reduced or set aside for various reasons. They jointly argue the court erred in entering the final judgment jointly and severally after the jury found Johnnie Calloway (“decedent”) to be at fault. Lastly, they argue the use of the Engle² findings violated due process.

Liggett argues it, Philip Morris, and Lorillard are entitled to a credit against the punitive damage award.

Plaintiff cross-appeals, arguing the trial court erred in sustaining certain defense objections concerning plaintiff's counsel's arguments.

The second amended complaint alleged counts against defendants for strict liability, negligence, fraudulent concealment, and conspiracy to commit fraud by concealment. Plaintiff sought apportionment of fault between the decedent and defendants and among defendants for the negligence-based claims. Plaintiff also sought apportionment of damages among the survivors and the estate.

The trial court granted defendants' motion to trifurcate the trial.

• Phase I determined whether the plaintiff was an Engle class member.

• Phase II determined causation, comparative fault, compensatory damages, and entitlement to punitive damages.

• Phase III determined the amount of punitive damages.

Testimony revealed the decedent started smoking at fifteen, eventually smoking up to three packs per day. Expert testimony established that “nicotine addiction is a huge barrier to people having a free choice whether to smoke” and most people continue to smoke because they are addicted, not because they want to.

Plaintiff's expert testified that during the decedent's childhood, tobacco companies spent billions of dollars to give the impression smoking was okay. Tobacco companies used the Tobacco Institute, and the Tobacco Industry Research Committee to accomplish this. Plaintiff used video clips and testimony to show how the tobacco companies spun the health concerns over cigarettes.

The decedent's brother testified about the decedent's exposure to the tobacco companies' messages. They saw ads claiming more doctors smoked Camels, which led them to think “if it's good enough for the doctors, it should be good enough for everybody.”

In September 1991, the decedent suffered a heart attack

and was hospitalized for several weeks. In May 1992, the decedent was diagnosed with bladder cancer. He returned home after chemotherapy, but was again hospitalized when he collapsed. He soon died of septic shock. A doctor connected the bladder cancer to his smoking and death. The decedent died just before his twentieth wedding anniversary when his daughter was around sixteen.

Throughout the trial, plaintiff's counsel made numerous statements that were objected to by defense counsel. The court sustained the objections, instructed the jury to disregard the comments, and denied defense motions for mistrial.

Defendants moved for mistrial after closing and rebuttal, arguing the singular and cumulative effect of plaintiff's counsel's improper comments. They argued the comments were inflammatory, repeatedly sustained, and were based on matters not in evidence. The court denied the motions for mistrial.

The court refused to use the defense's proposed reliance instruction for the conspiracy and fraudulent concealment claims. The court instructed the jury—over a defense objection—that the comparative fault findings applied to only the non-intentional torts and the compensatory award would not be comparatively reduced if the jury found for plaintiff on the intentional tort questions. Defendants argued this case was about negligent products liability. Plaintiff responded that it was an intentional tort case based upon fraudulent concealment.

In Phase I, the jury found plaintiff was a member of the Engle class. In Phase II, the jury found that, both before and after the trigger date for the statute of repose, defendants' individual fraudulent concealment and conspiracy to commit fraudulent concealment were all legal causes of the decedent's death. It awarded $9,000,000 in non-economic damages to the plaintiff and $7,100,000 to the decedent's daughter.³ It also found that plaintiff was entitled to punitive damages. And, it apportioned the following liability among the parties:

The court entered final judgment for compensatory damages against the defendants jointly and severally. In Phase III, the jury assessed the following punitive damages:

All defendants moved for a new trial based upon plaintiff's counsel's inflammatory statements during Phase II. They claimed error in the jury instructions, and requested a reduction in compensatory damages. The court denied the motions. Philip Morris, Lorillard, and Liggett moved to strike the punitive damage awards based on a partial settlement agreement reached with the Engle class. The court denied the motions.

Liggett moved for a judgment notwithstanding the verdict, a new trial, and remittitur, arguing that plaintiff's counsel made inflammatory remarks during Phase III, and introduced financial evidence regarding Liggett that was outside the record. It also argued the punitive and compensatory damage awards were excessive. The court denied the motions. Defendants filed their notice of appeal and plaintiff cross-appealed.

We address three issues in this opinion: (1) plaintiff's counsel's comments; (2) the jury instructions; and (3) the application of comparative negligence.

1. Plaintiff's counsel's comments

The tobacco defendants argued for a new trial based on the singular and cumulative effect of plaintiff's counsel's improper comments on the basis that they were numerous, inflammatory, repeatedly sustained, and injected matters not in evidence. The trial court appropriately sustained many of the objections, but was required to repeatedly instruct the jury to disregard plaintiff's counsel's comments, while at other times the comments provoked motions for mistrial after the court sustained the objection. The court denied each and every motion for mistrial made throughout the trial.

Defendants argue that the comments and argument of plaintiff's counsel were so improper that their cumulative effect during the Phase II proceedings was such that the jury verdict was unduly based upon passion and prejudice. Based on our review of the record, we agree.

“A trial court's denial of a motion for mistrial and a motion for new trial based on improper closing arguments are reviewed for abuse of discretion.” Whitney v. Milien, 125 So.3d 817, 818 (Fla. 4th DCA 2013)

. Rather than commenting on each and every one of the highly improper and inflammatory remarks that plaintiff's counsel made to the jury, we need only highlight a few examples of the more egregious remarks that occurred during the Phase II proceedings.

Over the course of plaintiff's counsel's thirty-three page opening at the start of Phase II, the court sustained fourteen separate defense objections to counsel's argumentative comments that included the following:

• “That's what this case is about: Money. Billions of dollars. You're going to hear how much money these companies make every day.”

• Commenting that tobacco industry executives went on TV with a cigarette in their hand and said, “If we find anything harmful, we'll remove it.” Plaintiff's counsel then commented, “They knew back in 1953. That's disgraceful. That's a disgraceful way to run a company.”

• “That's what these companies do. That's shameful.”

• “That kind of conduct ... should not be accepted.”

• Plaintiff's counsel stated that the tobacco defendants said after Engle, “Smoking is addictive and

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