Scott v. American Tobacco Co., Inc.

• Decision Date: 07 February 2007
• Docket Number: No. 2004-CA-2095.,2004-CA-2095.
• Citation: 949 So.2d 1266
• Parties: Gloria SCOTT and Deania M. Jackson, on Behalf of Themselves and All Other Persons Similarly Situated v. The 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.; Philip Morris Companies, Inc.; et al.
• Court: Court of Appeal of Louisiana — District of US

949 So.2d 1266

Gloria SCOTT and Deania M. Jackson, on Behalf of Themselves and All Other Persons Similarly Situated v. The 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.; Philip Morris Companies, Inc.; et al.

No. 2004-CA-2095.

Court of Appeal of Louisiana, Fourth Circuit.

February 7, 2007.

Rehearing Denied March 2, 2007.

Joseph M. Bruno, Davis S. Scalia, Bruno & Bruno, Kenneth M. Carter, Kenneth M. Carter, PLC, New Orleans, Jack M. Bailey, Jr., Shreveport, Daniel E. Becnel, Jr., Law Office of Daniel E. Becnel, Jr., Reserve, Raul R. Bencomo, Bencomo & Associates, Robert L. Redfearn, Simon, Peragine, Smith & Redfearn, L.L.P., Russ M. Herman, Stephen J. Herman, Herman, Herman, Katz & Cotlar, LLP, New Orleans, Bruce C. Dean, Bruce C. Dean, LLC, Metairie, Deborah M. Sulzer, Attorney at Law, Stephen B. Murray, Stephen B. Murray, Jr., Murray Law Firm, Walter J. Leger, Jr., Christine L. DeSue, Leger & Mestayer, Meyer H. Gertler, Louis L. Gertler, Gertler, Gertler, Vincent & Plotkin, L.L.P., New Orleans, W. James Singleton, Singleton Law Firm, Shreveport, Paul H. Due', Due', Price, Guidry, Piedrahita & Andrews, Baton Rouge, Louis Roussel, III, Metairie, Michael X. St. Martin, St. Martin and Williams, Houma, Calvin C. Fayard, Jr, Fayard & Honeycuytt, Denham Springs, for Plaintiffs/Appellees.

Carmelite M. Bertaut, Stone, Pigman, Walther, Wittman, L.L.C., New Orleans, Richard A. Schneider, Jack M. Williams, King & Spalding LLP, Atlanta, GA, for Appellant, Brown & Williamson Tobacco Corporation (now known as Brown & Williamson Holdings, Inc., individually and as successor by merger to The American Tobacco Company).

Charles F. Gay, Jr., Ronald J. Sholes, Jeffrey E. Richardson, Christy F. Kane, Martin A. Stern, Adams and Reese LLP, New Orleans, for Appellants, Philip Morris USA, Inc. and The Tobacco Institute, Inc.

Phillip A. Wittmann, Dorothy H. Wimberly, Stone Pigman Walther Wittmann L.L.C., New Orleans, Mark A. Belasic, Robert H. Klonoff, Kevin D. Boyce, Jones,

Day, Cleveland, OH, for Appellant, R.J. Reynolds Tobacco Company.

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

(Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).

GORBATY, Judge.

A class was certified as one for the establishment of a court-supervised medical monitoring and/or smoking cessation program fund. Following two phases of trial, a judgment was rendered whereby defendants¹, cigarette manufacturers and a public relations firm, were ordered to fund a smoking cessation program for class members who desired to quit smoking. Defendants appeal that judgment. For the following reasons, we affirm in part, amend in part, reverse in part, and remand.

PROCEDURAL HISTORY:

This lawsuit was originally filed on May 24, 1996, on behalf of Gloria Scott and Deania Jackson. In 1997 a class was certified to include all Louisiana residents who smoked on or before May 24, 1996, and who desired to participate in a monitoring and/or cessation program. Between 2000 and 2002, the trial court created a trial plan, which defendants claim was repeatedly altered. After many writ applications and remands addressing how the ultimate trial should proceed, the Supreme Court ordered that the trial court proceed with Phase I of the trial, assuming that the common issues of fault and causation could be tried during this phase along with any applicable class-wide affirmative defenses. The Louisiana Supreme Court further ordered that the trial court formulate a plan to try individualized issues thereafter.

Following Phase I of the trial, the jury rendered a verdict whereby it rejected plaintiffs' product defect claim. Generalized findings in plaintiffs' favor were made with regard to the claims for fraud and breach of an assumed duty. However, no specific findings as to any individual plaintiff were made. The jury rejected plaintiffs' medical monitoring claim, but again made generalized findings in favor of a smoking cessation program.

Subsequent to Phase I, the trial court issued Trial Order No. 10. The order included the trial court's assessment of what transpired during Phase I, and directives on what would transpire during Phase II and thereafter. The trial court determined that all common issues of liability (fault and causation, including the Bourgeois factors²), and all applicable class-wide defenses and affirmative defenses had been tried by the jury in Phase I. The jury had determined the need for a court administered smoking cessation program. The trial court further found that, based on the evidence adduced and the law, principles of comparative fault and assumption of the risk did not apply to the case. Further, there were no remaining liability issues to be tried on a class-wide basis. The trial court surmised that the plaintiffs' claims were for a single, common, unitary, equitable, court-supervised fund by the class as a whole. Therefore, the only issue of reliance was on a class-wide basis, which the Phase I jury determined existed. Individual reliance was not an issue for Phase II, but would be reserved for Phase IV when individual, monetary damages were determined. The court further found that failure to mitigate was not a viable affirmative defense because participation in a cessation program was mitigation in and of itself. Lastly, the court overruled the defendants' exception of prescription finding that the doctrines of contra non valentem and continuing tort applied.

At the end of Phase II, the jury returned a special verdict form accepting all of plaintiffs' demands, except for limiting the smoking cessation program to a 10 year period (plaintiffs had requested a 25 year program).

Almost six weeks after the jury returned its verdict, the trial court issued a judgment and a separate document entitled "Findings of Fact and Reasons for Judgment." The judgment ordered that the jury's award of $591,342,476.55 plus pre-judgment interest be paid into the court's registry. The judgment did not include the jury's Phase I finding that defendants' product was not defective or that plaintiffs were not entitled to medical monitoring. The trial court explained that it was issuing its own judgment, with detailed reasons, because it considered the jury's verdict to be merely advisory.

This appeal followed.

DISCUSSION:

ASSIGNMENT OF ERROR NO. 8:

We address this assignment of error first as it affects our use of the judgments, special verdicts, findings of fact, evidence and rulings considered to address each other assignment of error.

Defendants aver that the trial court erred by displacing the jury as finder of fact by refusing to include in the final judgment the jury's rejection of plaintiffs' claim that defendants' product was defective in normal use, and the jury's rejection of plaintiffs' demand for medical monitoring. Further, the trial court erred in making its own factual finding that defendants had assumed duties to protect others when they published the Frank Statement and the Cigarette Advertising Code of 1964, rather than submitting that factual finding to the jury. Lastly, defendants aver that the trial court erred when it rendered the jury's findings "advisory" and issued its own "Findings of Fact and Reasons for Judgment."

Following Phase I of the trial, the trial court issued Trial Order No. 10, which stated in part: "The Court therefore determines that a Phase II trial is necessary and that trial shall be conducted in accordance with this Order and tried by the Phase I jury." Weeks after issuing Trial Order No. 10, the trial court issued a per curiam wherein it stated that the Phase II proceedings were equitable or injunctive in nature, thus obviating the need for a jury. However, out of an abundance of caution, the trial court would allow the jury to adjudicate Phase II. Subsequent to the Phase II trial, the trial court issued a judgment acknowledging that the matter had been tried before a jury, but stated that the judgment was based on an adoption of the jury's findings for both Phase I and Phase II, its own findings of fact, equitable considerations, and applicable principles of equity and law.

Louisiana Code of Civil Procedure Art. 1812 D provides in the case of a special verdict, the trial court shall "enter judgment in conformity with the jury's answers to these special questions and according to applicable law." La.Code of Civ. Proc. art.1916 provides that "[w]hen a case has been tried by a jury, the following rules shall apply as to a judgment rendered on the verdict: . . . (2) When the jury returns a special verdict, the judge must sign a judgment in accordance therewith . . . ." There is no provision in Louisiana law for a judge to render written reasons for judgment in a jury trial. Further, there is no provision for a jury's verdict to be considered "advisory," thereby allowing the trial court to interpret the jury's verdict or substitute its own findings of fact. This Court will not, therefore, consider the trial court's findings of fact or reasons for judgment. Further, we will consider the judgment rendered insofar as it tracks the jury's special verdicts.

Accordingly, we amend the judgment to include the jury's finding that defendants' product was not defective in design prior to or after September 1, 1988, and that medical monitoring is not reasonably necessary.

ASSIGNMENTS OF ERROR NOS. 5 AND 6:

We will next address these assignments of error, since they are dispositive of major issues in this case. Defendants argue that the jury's rejection of plaintiffs' claims under the Louisiana...