R.J. Reynolds Tobacco Co. v. Calloway

SECOND CORRECTED OPINION

Appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case No. 08-21770CACE.

Benjamine Reid and Cristina Alonso of Carlton Fields Jorden Burt, P.A., Miami, and Gregory G. Katsas and Charles R.A. Morse of Jones Day, Washington, D.C. for appellant, R.J. Reynolds Tobacco Company.

Makai Fisher of Shook, Hardy & Bacon, L.L.P., San Francisco, California, Geri E. Howell of Shook, Hardy & Bacon, L.L.P., Miami, and Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C. for appellant, 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, 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.

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

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MAY, J.

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.

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

We reverse the final judgment in part and remand the case for a new trial on the conspiracy and concealment counts, and on the entitlement to and amount of punitive damages. We find no merit in the other issues raised on direct appeal and cross-appeal.

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

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

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• 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.

The 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. The 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 the defense motions for mistrial.

The 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.

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The court refused to use the defense 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 the plaintiff on the intentional tort questions. The defendants argued this case was about negligent products liability. The plaintiff responded that it was an intentional tort case based upon fraudulent concealment.

In Phase I, the jury found the 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, the defendants' individual fraudulent concealment and conspiracy to commit fraudulent concealment were all legal causes of the decedent's death. It awarded nine million dollars in non-economic damages to the plaintiff and seven million one hundred thousand dollars to the decedent's daughter.³ It also found the 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:

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All the 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. The defendants filed their notice of appeal and the 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.

With regard to the comments made by plaintiff's counsel, suffice it to say that he pushed the envelope at every turn. The comments included an attack on defense witnesses, golden rule arguments, and an argumentative opening statement. The trial court diligently sustained objections, instructed the jury to disregard them; and denied numerous motions for mistrial. The problem was the constant need to have the trial court rule on these objections, forcing the court to fix the damage by instructing the jury to disregard the improper comments. We do not find error in the court's rulings, but we call counsel's attention to the numerous, unnecessary, and improper remarks. They injected potential error at every turn, and nearly caused us to reverse the judgment. They are the subject of Judge Klingensmith's dissent.

The defendants argue the court's refusal to instruct the jury on the detrimental reliance element of the fraud-based claims warrants a new trial on those claims. The plaintiff responds that the court's instruction sufficiently covered the reliance element and the defendants' proposed instruction misstated the law. We disagree with the plaintiff and reverse the judgment on the fraud-based claims.

Here, the defendants requested a reliance instruction because it was an essential element of the fraudulent concealment and conspiracy to

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commit fraudulent concealment claims. R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049, 1051 (Fla. 4th DCA 2013); Philip Morris USA, Inc. v. Kayton, 104 So. 3d 1145, 1150-51 (Fla. 4th DCA 2012). Their defense was that the decedent did not detrimentally rely on any concealed information. The proposed detrimental reliance instruction read:

A Defendant cannot be held liable for fraudulent concealment for failing to make any statements to