Sowers v. R.J. Reynolds Tobacco Co., Nos. 18-11901

• Decision Date: 15 September 2020
• Docket Number: 18-11902,Nos. 18-11901
• Parties: Mary SOWERS, as personal representative of the Estate of Charles Sowers, Plaintiff-Appellee Cross-Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and The American Tobacco Company, Defendant-Appellant Cross-Appellee, Philip Morris USA, Inc., et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

975 F.3d 1112

Mary SOWERS, as personal representative of the Estate of Charles Sowers, Plaintiff-Appellee Cross-Appellant,

v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and The American Tobacco Company, Defendant-Appellant Cross-Appellee,Philip Morris USA, Inc., et al., Defendants.

Nos. 18-11901

18-11902

United States Court of Appeals, Eleventh Circuit.

September 15, 2020

Richard M. Heimann, Robert J. Nelson, Kevin R. Budner, Elizabeth Joan Cabraser, Sarah Robin London, Martin D. Quinones, Todd A. Walburg, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Frederick C. Baker, Sara Orpha Couch, Rebecca M. Deupree, Robert Turner Haefele, Mathew Jasinski, James William Ledlie, Patrick Graham Maiden, Donald Alan Migliori, Lance V. Oliver, Joseph F. Rice, Lisa M. Saltzburg, Elizabeth S. Smith, Motley Rice, LLC, Mt Pleasant, SC, Charles Easa Farah, Jr., Farah & Farah, PA, Stephanie J. Hartley, Richard Lantinberg, Janna Blasingame McNicholas, Norwood Wilner, The Wilner Firm, PA, Jacksonville, FL, Nathan David Finch, Motley Rice, LLC, Washington, DC, Andrew R. Kaufman, John T. Spragens, Lieff Cabraser Heimann & Bernstein, LLP, Nashville, TN, Michael J. Pendell, Motley Rice, LLC, Hartford, CT, for Plaintiff-Appellee.

Stephanie Ethel Parker, Emily C. Baker, Jason Todd Burnette, Michael F. Stoer, Jones Day, Atlanta, GA, Dana G. Bradford, II, Smith Gambrell & Russell, LLP, Robert B. Parrish, Joseph W. Prichard, Jr., David C. Reeves, Jeffrey Alan Yarbrough, Moseley Prichard Parrish Knight & Jones, Jacksonville, FL, Joshua Reuben Brown, Greenberg Traurig, PA, Orlando, FL, Edward M. Carter, Jones Day, Columbus, OH, Timothy James Fiorta, Jones Day, Cleveland, OH, Jose Isasi, II, Jones Day, Chicago, IL, Terri Lynn Parker, Shook Hardy & Bacon, LLP, Tampa, FL, for Defendant-Appellant.

Before BRANCH, TJOFLAT, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

Charles Sowers smoked one to three packs of cigarettes a day for about fifty years, and it killed him. He died of lung cancer

caused by smoking cigarettes. Mary Sowers, his widow and the representative of his estate, sued the manufacturer of the cigarettes, R.J. Reynolds, under Florida's wrongful death statute. A jury found the company liable for his death and awarded compensatory damages, which resulted in a judgment of $2.125 million.

R.J. Reynolds has appealed, seeking a new trial on two grounds, one involving an evidentiary ruling and the other involving some statements Mrs. Sowers’ attorney made in closing argument. We find no merit in either ground. She has cross-appealed, seeking a new trial on the issue of punitive damages, which was not presented to the jury at the first trial. R.J. Reynolds does not dispute that Mrs. Sowers is entitled to a new trial on punitive damages but contends that if there is one it will have to include the liability issue, which would put at risk all of the compensatory damages she was awarded in the first trial. We disagree that the trial she is entitled to receive on the punitive damages issue will open up the liability and compensatory damages judgment that she has already obtained in the first trial.

And, as we will explain, unless it is successful in getting our judgment vacated or reversed, R.J. Reynolds will have to pay Mrs. Sowers the compensatory damages award, plus any applicable interest, promptly after our mandate issues instead of delaying payment until after the trial on punitive damages and any resulting appeal from the judgment in that trial is completed.

I. BACKGROUND: THE ENGLE CASE

This is an " Engle progeny" case, the name insiders give to the originating class action lawsuit with a lead plaintiff named Engle. See Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). In that case, a group of Florida smokers and smokers’ survivors filed a class action against the major tobacco companies, including R.J. Reynolds, for injuries they suffered because of the tobacco companies’ manufacture and sale of cigarettes containing nicotine. See id. at 1256 & n.3. The Engle class asserted numerous claims, including: (1) strict liability; (2) fraud; (3) conspiracy to commit fraud; (4) breach of implied warranty; (5) intentional infliction of emotional distress; (6) negligence; and (7) breach of express warranty; they also requested equitable relief. See R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996).

After lengthy discovery and a year-long trial in the class action, the jury found, among other things, that the tobacco companies had breached their duty of care and sold defective cigarettes, and that their conduct satisfied the conduct elements of the torts of fraudulent concealment, conspiracy to fraudulently conceal, breach of warranty, negligence, and strict liability. See Engle, 945 So. 2d at 1255, 1276–77 ; see also Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1346 (11th Cir. 2018) ("According to [the Florida Supreme Court], the Engle jury did not decide the defendants’ liability, but instead ‘decided issues related to [the defendants’] conduct.’ ") (first brackets added) (quoting Engle, 945 So. 2d at 1263 ). The Florida Supreme Court upheld the jury's findings and "decertified the class to allow individual actions about the remaining issues of specific causation, damages, and comparative fault." Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1174 (11th Cir. 2017) (en banc) (citing Engle, 945 So. 2d 1246 ).

The Florida Supreme Court also clarified that some of the jury's findings "had preclusive effect in the later individual actions." Id.; see also Engle, 945 So. 2d at 1277.

Specifically, the Engle jury findings establish: (1) "that smoking cigarettes causes’ various diseases, including ‘lung cancer

"; (2) "that nicotine in cigarettes is addictive"; (3) "that the defendants placed cigarettes on the market that were defective and unreasonably dangerous"; (4) "that the defendants concealed or omitted material information not otherwise known or available knowing that 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) "that the defendants 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) "that all of the defendants sold or supplied cigarettes that were defective"; (7) "that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants"; and (8) "that all of the defendants were negligent."

Searcy, 902 F.3d at 1346 (quoting Engle, 945 So. 2d at 1276–77 ). All members of the Engle class in their individual follow up trials are entitled to the benefit of those specific findings without having to prove them.

As a result, in his individual lawsuit an " Engle progeny" plaintiff who proves he is a member of the Engle class can use the findings of the Engle jury to establish the conduct elements for the torts of "strict liability, negligence, breach of express and implied warranty, fraudulent concealment, and conspiracy to fraudulently conceal claims." Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 436 (Fla. 2013).

What is left for each Engle progeny plaintiff to prove to prevail on an individual claim for negligence and strict liability (the two claims on which Mrs. Sowers succeeded) is: (1) membership in the Engle class, (2) individual causation, which is established by showing "that addiction to smoking the Engle defendants’ cigarettes containing nicotine was a legal cause of the injuries alleged," and (3) damages. Searcy, 902 F.3d at 1346 (quoting Douglas, 110 So. 3d at 430 ). To prevail on individual claims for fraudulent concealment and conspiracy to fraudulently conceal (the two claims on which Mrs. Sowers did not succeed), Engle progeny plaintiffs must prove: (1) membership in the Engle class; (2) detrimental reliance on the material information that the Engle defendants had concealed and conspired to conceal about the health effects and/or addictive nature of smoking; (3) that the plaintiff's reliance was a legal cause of his injuries; and (4) damages. See Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1106 (11th Cir. 2018).

If an Engle progeny plaintiff who is a member of the class asserts in his individual lawsuit a negligence claim, he is entitled to the benefit of the Engle jury's finding that the tobacco company was negligent. But under Florida law, in a negligence or strict liability action, the company is entitled to assert the affirmative defense of comparative fault and to use it to seek a reduction in an award of compensatory damages on the ground that the injured person¹ contributed to his own injuries. See Fla. Stat. § 768.81(2) (stating that in a civil action for damages based on certain claims, including negligence and strict liability, "contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery"). Comparative fault does not apply to intentional tort actions. Id. § 768.81(4). So when an Engle progeny case contains both negligence and intentional tort claims, if the plaintiff prevails on an intentional tort claim, any compensatory damages award "may not be reduced by comparative fault." Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 305 (Fla. 2017) ; see also Smith v. R.J. Reynolds Tobacco Co., 880 F.3d 1272, 1279 (11th Cir. 2018).

II. BACKGROUND: THIS CASE

Mrs. Sowers brought her Engle progeny claims in a wrongful death lawsuit for losses she suffered when her husband, a lifelong smoker, died of lung cancer

in 1995. She asserted claims of fraudulent...