Scott v. Am. Tobacco Co. Inc

• Decision Date: 12 May 2010
• Docket Number: No. 2009-CA-0461.,2009-CA-0461.
• Citation: 36 So.3d 1046
• Parties: Gloria SCOTT and Deania M. Jackson, on Behalf of Themselves and All Other Persons Similarly Situatedv.AMERICAN TOBACCO COMPANY, INC.; American Brands, Inc.; R.J. Reynolds Tobacco Company; RJR Nabisco, Inc.; Brown & Williamson Tobacco Corporation; Batus, Inc.; Batus Holdings, Inc.; Philip Morris, Inc.; Philiip Morris Companies, Inc.; et al.
• Court: Court of Appeal of Louisiana — District of US

36 So.3d 1046

Gloria SCOTT and Deania M. Jackson, on Behalf of Themselves and All Other Persons Similarly Situated
v.
AMERICAN TOBACCO COMPANY, INC.; American Brands, Inc.; R.J. Reynolds Tobacco Company; RJR Nabisco, Inc.; Brown & Williamson Tobacco Corporation; Batus, Inc.; Batus Holdings, Inc.; Philip Morris, Inc.; Philiip Morris Companies, Inc.; et al.

No. 2009-CA-0461.

Court of Appeal of Louisiana,
Fourth Circuit.

April 23, 2010.
Rehearing Denied May 12, 2010.

36 So.3d 1047

Stephen P. Bruno, David S. Scalia, Bruno & Bruno, Robert L. Redfearn, Robert L. Redfearn, Jr., Simon, Peragine, Smith & Redfearn, L.L.P., Raul R. Bencomo, Bencomo & Associates, Russ M. Herman, Stephen J. Herman, Herman, Herman, Katz & Cotlar, LLP, Deborah M. Sulzer, Stephen B. Murray, Stephen B. Murray, Jr., Murray Law Firm, Walter J. Leger, Jr. Leger & Mestayer, Meyer H. “Mike” Gertler, Louis L. Gertler, Gertler, Gertler, Vincent & Plotkin, L.L.P. New Orleans, LA, Kenneth M. Carter Kenneth M. Carter, PLC, St. Francisville, LA, Jack M. Bailey, Jr. W. James Singleton, Singleton Law Firm, Shreveport, LA, Daniel E. Becnel, Jr. Law Office of Daniel E. Becnel,

36 So.3d 1048

Jr., Reserve, LA, Bruce C. Dean, Bruce C. Dean, LLC, Metairie, LA, Paul H. Due', Due', Price, Guidry, Piedrahita & Andrews Baton Rouge, LA, Michael X. St. Martin, St. Martin & Williams, Houma, LA, Calvin C. Fayard, Jr., Fayard & Honeycutt, Denham Springs, LA, for Plaintiffs/Appellees.

Charles F. Gay, Jr., Ronald J. Sholes, Martin A. Stern, Jeffery E. Richardson, Adams and Reese LLP, New Orleans, LA, for Phillip Morris USA, Inc. and the Tobacco Institute, Inc.

Steven W. Copley, Gordon, Arata, McCollam, Duplantis & Eagan, LLP, New Orleans, LA, Gary R. Long, Jennifer L. Brown, Shook, Hardy & Bacon, L.L.P., Kansas City, MO, for Lorillard Tobacco Company.

Phillip A. Wittmann, Dorothy H. Wimberly, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, Mark A. Belasic, Kevin D. Boyce, Jones Day, Cleveland, OH, For R.J. Reynolds Tobacco Company.

Carmelite M. Bertaut Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, Richard A. Schneider, King & Spalding LLP, Atlanta, GA, for Brown & Williamson Tobacco Corporation (Now Known as Brown & Williamson Holdings, Inc., individuALLY and as Successor by Merger to the American Tobacco Company).

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

The “tobacco companies” ¹ suspensively appeal ² the Amended Judgment rendered on July 21, 2008 in this class action matter which ordered them to deposit into the court's registry the full amount of $263,532,762 with legal interest from June 30, 2004, until paid, in order to fund a court supervised comprehensive smoking cessation program. Ms. Deania Jackson ³ timely filed an answer to the appeal. La. C.C.P. art. 2133 A. For the reasons which follow, we amend the judgment and, as amended, affirm.

I

This court decided an earlier appeal brought by the tobacco companies in Scott v. American Tobacco Co., Inc., 04-2095 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, rehearing denied, writ denied, 07-0654, 973 So.2d 740 (La.1/7/08), writ denied, 07-0662 (La.1/7/08), 973 So.2d 740, cert. denied, --- U.S. ----, 128 S.Ct. 2908, 171 L.Ed.2d 842 (2008). We refer to that decision as Scott I.⁴ The jury had tried the

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case in two phases, from June 18, 2001, through May 21, 2004, pursuant to former La. C.C.P. art. 593.1 and in accordance with Case Management Order # 2, Trial Order No. 5, the Order of the Louisiana Supreme Court ( Scott v. American Tobacco, 02-2449 (La.11/15/02), 830 So.2d 294), and Trial Order No. 10.

On the appeal of Scott I, after treating the tobacco companies' eleven assignments of error, we remanded the matter to the trial court for further proceedings. After the finality of Scott I, the trial court rendered an amended judgment, which the trial court concluded was “in accord with the dictates of the Court of Appeal....” ⁵ In that judgment, which is the subject of this appeal, the trial court mandated that the tobacco companies fully fund the four components ⁶ of the smoking cessation program authorized in Scott I, which totaled $251,013,580 plus an additional five-percent administrative fee of $12,549,179. Also, the trial court ordered post-judgment interest on the entire amount from June 30, 2004, which was the date of its earlier judgment appealed from in Scott I.

The tobacco companies assign four errors. They complain that the amended judgment incorporates errors of its original judgment which were “left intact” by our decision in Scott I. We address this assignment in Part II. They also complain that their Due Process rights have been violated by the refusal of the trial court to empanel a new jury to determine the issues remanded to the trial court. We address this assignment in Part III. A third complaint is that the award is excessive because the trial court condemns them to pay for program components which we ruled in Scott I were not recoverable by the class. We address this assignment in Part IV. Their final complaint is that the trial court erred in awarding post-judgment interest and in the date selected from which interest is to be calculated. We address this assignment in Part VI.

Ms. Jackson, as the class representative, assigned five errors. She first contends that the trial court's Amended Judgment is legally correct and should be affirmed. But, out of an abundance of caution, if the tobacco companies are to obtain relief on their assignment of error in which they urge us to revisit our decision in Scott I, then she too seeks to preserve her right to relief from our judgment in these particulars: (a) legal interest from the date of judicial demand ⁷ should be awarded, (b) the comprehensive smoking-cessation program should include all twelve components proved at trial, (c) the tobacco companies should be ordered to deposit a sum of money for funding the court-supervised cessation program, (d) amendment should provide that the tobacco companies' product was defective in design both prior to and after September 1, 1988, and provide that the “exclusivity” provisions of the Louisiana Products Liability Act (LPLA) do not insulate the tobacco companies from post-1988 conduct in this case, and (e) the judgment should provide that medical monitoring is reasonably necessary. We address all of her assignment in Part II.

II

The central jury holding of Scott I is that the tobacco companies

... individually and conspiring with each other, knowingly and deliberately conspired to commit, and did commit

36 So.3d 1050

fraud that spanned five decades, directly causing injury to the class of Louisiana smokers ... [and that they] knowingly and deliberately addicted the population of Louisiana smokers to a product known to them to be both addictive and extremely toxic.

Scott I, supra, at p. 12, 949 So.2d at 1276.

Based upon that finding, we meticulously reviewed the jury's findings and determinations and reached conclusions that some, but not all, of the jury's findings were supportable. Despite the parties' requests, we decline to revisit those issues settled by us in Scott I unless we have been shown to be in palpable error or our ruling was manifestly unjust. The doctrine or principle known as “the law of the case” guides us in determining whether to revisit issues which were decided by this court on the earlier appeal in this case.

The law of the case doctrine is discretionary. Lejano v. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158. “The law of the case” doctrine or principle ⁸ refers to

(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.
Bank One, N.A. v. Velten, 04-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458 (emphasis added), citing Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). This doctrine “may bar redetermination of a question of law or a mixed question of law and fact during the course of a judicial proceeding.” 1 Frank L. Maraist and Harry T. Lemmon Louisiana Civil Law Treatise: Civil Procedure, § 6.7 (1999); Bank One, supra. The law of the

case doctrine, rather than res judicata, is the proper legal principle for describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Bank One, 04-2001 at p. 6, 917 So.2d at 458-59.⁹ See Reed v. St. Charles General Hospital, 08-0430, pp. 9-10 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, 1145-46.

The policy reasons behind this doctrine include avoidance of re-litigation of an issue, consistency of result in the same litigation, and promotion of efficiency and fairness to the parties “by affording a single opportunity for the argument and decision of the matter at issue.” Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (La.1971); Bank One, supra.

While the law of the case doctrine as a general rule precludes reconsideration of a court's previous determination of an issue on a prior appeal, the doctrine is inapplicable in cases of palpable error or where manifest injustice would occur.

36 So.3d 1051

Keaty v. Raspanti, 96-2839, p. 4 (La.App. 4 Cir. 5/28/97), 695 So.2d 1085, 1087 (citing Dodson v. Community Blood Center, 93-3158 (La.App. 1st Cir.1993), 633 So.2d 252, 255, and cases cited therein); Moore v. Kenilworth/Kailas Properties, 07-0346, p. 8 (La.App. 4 Cir. 2/13/08), 978 So.2d 475, 480; Jones v. McDonald's Corp., 97-2287, pp. 4-5 (La.App. 1 Cir. 11/6/98), 723 So.2d 492, 494; Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., 419 So.2d 1269, 1271 (La.App. 1st Cir.1982).

Although the parties have made plain their dissatisfaction...