R.J. Reynolds Tobacco Co. v. Schleider

273 So.3d 63

R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee,

v.Diane SCHLEIDER, etc., Appellee/Cross-Appellant.

No. 3D15-1634

District Court of Appeal of Florida, Third District.

Opinion filed December 26, 2018

Rehearing Denied February 14, 2019

King & Spalding LLP, and William L. Durham II, Chad A. Peterson, Val Leppert (Atlanta, Georgia), and Scott M. Edson and Ashley C. Parrish (Washington, DC); Carlton Fields Jorden Burt, P.A., and Benjamine Reid, Douglas J. Chumbley, Jeffrey A. Cohen, and Olga M. Vieira, for appellant/cross-appellee.

Alex Alvarez ; Gary M. Paige (Davie, Florida); The Mills Firm, P.A., and John S. Mills and Courtney Brewer (Tallahassee), for appellee/cross-appellant.

Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.

LOGUE, J.

R.J. Reynolds Tobacco Company appeals the final judgment entered in favor of Diane Schleider, the wife and personal representative of the Estate of Andrew Schleider, and Suzanne LeMehaute, their daughter. We affirm and write only to address R.J. Reynolds' challenge to the closing arguments and the size of the damage awards.

Background

Andrew Schleider, a cigarette smoker, died from lung cancer and chronic obstructive pulmonary disease. His wife sued R.J. Reynolds for wrongful death in her capacity as personal representative of his estate alleging she and their daughter were statutory survivors within the meaning of Florida's Wrongful Death Act. The complaint alleged the father was a member of the class created in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). Under Engle, if the plaintiff qualifies as a member of the class, certain facts are found against the defendant tobacco company as a matter of res judicata without the need of further proof.¹

One of the prerequisites for Engle class membership is that the decedent's disease manifested on or before November 21, 1996. Id. at 1275. The issue of when the father's disease manifested was one of the main issues at trial and the jury's finding in favor of the wife and daughter is challenged on appeal, but we affirm that point without discussion.

The trial spanned nearly three weeks. In addition to the evidence presented at trial, the jury was instructed on specific findings it must apply if, as occurred, Mr. Schleider was found to be a member of the Engle class. The instructions read to the jury were:

1. Smoking cigarettes causes lung cancer.

2. Cigarettes that contain nicotine are addictive.

3. Defendant, R.J. Reynolds Tobacco Company, placed cigarettes on the market that were defective and unreasonably dangerous.

4. Defendant, R.J. Reynolds Tobacco Company, concealed or omitted material information not otherwise known or available knowing that the material was false and misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.

5. Defendant, R.J. Reynolds Tobacco Company, entered into an agreement with other companies and industry organizations 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. Those companies include Philip Morris, USA, Inc., Lorillard Tobacco Company, Lorillard, Inc., Brown & Williamson Tobacco Corporation, individually and as a successor by merger to the American Tobacco Company, and Liggett Group, Inc. The industry organizations are the Council for Tobacco Research USA, Inc., and the Tobacco Institute, Inc.

Defendant R.J. Reynolds Tobacco Company was negligent. These findings may not be denied or questioned and they may carry – they must carry the same weight they would have if you had determined them yourselves.

....

The findings may not be considered in any way when determining whether punitive damages may be warranted. You must make your determination regarding whether punitive may be warranted based only upon the factual evidence presented to you in the trial.

(Emphasis added). These instructions specified that R.J. Reynolds intentionally concealed facts regarding the dangers and addictive qualities of cigarettes.

Evidence was presented throughout the trial indicating the tobacco industry spent approximately $250 billion dollars between 1940 and 2005 to promote and advertise cigarettes. The jury also heard evidence regarding the tobacco industry's lobbying efforts and attempts to conceal the hazards of smoking. In addition, the jury heard from R.J. Reynolds' own corporate representative that 400,000 to 480,000 people were dying each year from smoking cigarettes.²

During the closing arguments addressing entitlement to punitive damages, the Plaintiffs' attorney made various arguments dramatizing the number of deaths caused by cigarettes and the size of the sums spent to promote smoking and conceal its dangers. In particular, he noted that 450,000 deaths equate to three plane crashes every day for a year. He also asked the jury to compare the attempts of Mr. Schleider, an individual addicted to nicotine, to stop smoking with the $250 billion spent by the tobacco industry "with all their power, all their money" to encourage people like Mr. Schleider to continue smoking.

Regarding the damages awards, the jury heard testimony from the wife regarding her husband's illness, the difficulties they endured, and the impact his suffering and death had upon their lives and future plans. The jury heard from the wife how she and her husband had been married for thirty years and how his death came shortly after commencing their retirement in the Florida Keys.

The jury heard the daughter was twenty-two years old when her father died. The father had been a stay-at-home parent who raised her. She followed her parents to the Keys, first to live with them, and then to live near them. She saw her father continually and provided care for him up to his death. At her wedding, she refused to have anyone walk her down the aisle in her father's absence.

In closing argument, Plaintiffs' counsel requested an award of non-economic damages for loss of companionship and protection and mental pain and suffering in the amounts of $11 million to the wife and $7 million to the daughter. Plaintiffs' counsel informed the jury that they "could go lower ... or higher, it's completely within [the jury's] province to do." On rebuttal, Plaintiff's counsel again requested those amounts and argued that the figures represented "fair compensation:" "if we could ask for more compensatory damages, I assure you that we would have." R.J. Reynolds's counsel immediately objected on the basis, stated in front of the jury, that "there is no limit on what they can ask for."

The jury ultimately awarded $15 million in non-economic damages to the wife and $6 million to the daughter, but refused to award the requested punitive damages. Regarding comparative negligence, Plaintiffs' counsel requested the jury find R.J. Reynolds 87.5% at fault and the decedent 12.5% at fault. The jury instead found R.J. Reynolds 70% at fault and the decedent 30% at fault. Following the application of comparative fault, the final judgment awarded $10.5 million to the wife and $4.2 million to the daughter.

Among other motions, R.J. Reynolds moved for a new trial on damages and for remittitur. The motions were denied and this appeal followed.

Analysis

R.J. Reynolds first argues that Plaintiffs' counsel made improper arguments during closing which warranted a new trial. We review the trial court's denial of the motion for a new trial under an abuse of discretion standard. See Engle, 945 So.2d at 1271 ("A trial court's order granting or denying a motion for a new trial based on either objected-to or unobjected-to improper argument is reviewed for abuse of discretion."). "If the issue of an opponent's improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial." Id. (quotation omitted).

While we do not condone the closing argument comments to which R.J. Reynolds objected, we conclude that the complained-of comments fall short of denying R.J. Reynolds its right to a fair trial. In reviewing the comments, it is important to remember their context. This case was a nearly three-week-long bifurcated Engle progeny case involving claims for intentional and non-intentional torts and prayers for non-economic compensatory damages flowing from Plaintiffs' loss of companionship and protection and pain and suffering, as well as for punitive damages.

Arguments inappropriate in a simple negligence case may be appropriate concerning record evidence of a party's intentional misconduct in the context of a claim for punitive damages. To give an obvious example, it is generally reversible error in a simple tort case seeking compensatory damages to ask a jury to "send a message" and punish or penalize the defendant. See, e.g., Erie Ins. Co. v. Bushy, 394 So.2d 228, 229 (Fla. 5th DCA 1981). Here, however, the jury was instructed to consider whether R.J. Reynolds committed intentional misconduct, meaning "Reynolds had actual knowledge of the wrong of the conduct and the high probability that injury would result and, despite that knowledge intentionally pursued that course of conduct," in which event the jury was directed to consider the propriety of punitive damages "as a punishment to Reynolds and as a deterrent to others."

R.J. Reynolds complains about the way Plaintiffs' counsel in closing noted that the 450,000 deaths from smoking annually equated to three airline crashes per day every day for a year. Although provocative and even somewhat inflammatory, the comparison itself was mild considering the magnitude of the number of deaths due to smoking (400,000 to 480,000 deaths annually) which was testified to by R.J. Reynolds' own corporate representative. The Surgeon General of the United States and the...