Sommers v. Philip Morris USA

388 So.3d 256

Stefanny SOMMERS, Appellant,

v.PHILIP MORRIS USA, INC., Appellee.

No. 3D22-1202

District Court of Appeal of Florida, Third District.

Opinion Filed March 6, 2024

An Appeal from the Circuit Court for Miami-Dade County, Alan Fine, Judge. Lower Tribunal No. 08-1464

Eaton & Wolk, PL, and Douglas F. Eaton, Miami, for appellant.

Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington, DC); Shook, Hardy & Bacon LLP, and Scott A. Chesin and Michael Rayfield (New York, NY), for appellee.

Before LOGUE, C.J., and FERNANDEZ and LINDSEY, JJ.

LOGUE, C.J.

In this Engle progeny case, Stefanny Sommers, as Personal Representative of the Estate of Bert Sommers, appeals the trial court’s final judgment. We find the trial court properly concluded that the current version of section 768.73(2), Florida Statutes, applied to Sommers’ wrongful death action and barred her punitive damages claim. We also find the trial court properly rejected Sommers’ alternative argument that she was entitled to pursue punitive damages based on her survival claim because she abandoned the survivor claim prior to trial. Accordingly, we affirm.

BACKGROUND

In 2008, Sommers brought an action for wrongful death against Philip Morris USA Inc. as a member of the class of individuals defined by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). Sommers alleged claims for strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal. In the alternative, Sommers brought a survival action alleging Philip Morris caused the decedent to develop coronary artery disease, which did not cause his death. The complaint specifically stated that the survival claim would apply only "in the event … Defendant[ ] contend[s] that Decedent[ ] died of some cause unrelated to smoking cigarettes containing nicotine[.]"

In 2014, Sommers moved to amend her complaint to allege a claim for punitive damages. The trial court entered an order granting the motion and allowing Sommers to seek punitive damages on both her intentional and non-intentional tort claims. Shortly thereafter, on September 3, 2014, this Court issued its opinion in R.J. Reynolds Tobacco Co. v. Williams, 183 So. 3d 408 (Fla. 3d DCA 2014), which adopted the First District’s decision in Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456 (Fla. 1st DCA 2012) and held that Engle plaintiffs were not entitled to seek punitive damages on their non-intentional tort claims. Philip Morris moved for reconsideration of the trial court’s order granting leave to amend as to the non-intentional torts based on Williams. They also filed a motion for summary judgment on Sommers’ claim for punitive damages arguing that Williams precluded punitive damages on the non-intentional tort claims and that Sommers had failed to produce sufficient evidence to support punitive damages on the intentional tort claims.

The trial court denied the motion for reconsideration without prejudice as to the non-intentional tort claims. The trial court indicated it intended to submit the issue to the jury through separate instructions and interrogatories to preserve the issue for appeal and preclude the need for a lengthy retrial.

During pretrial motions, the trial court subsequently heard Philip Morris’ motion for summary judgment on the punitive damages claim. At the conclusion of the hearing, the trial court granted the motion in its entirety. With respect to the intentional tort claims, the trial court ruled that Sommers submitted an insufficient factual record on reliance, stating there was no evidence in the record that the decedent relied on any statement made by Philip Morris in any way that caused harm to the decedent. As to the non-intentional tort claims, the trial court relied on Williams.

Sommers filed a lengthy motion for rehearing, which was heard the Friday before trial was expected to begin. At the conclusion of the hearing, the trial court indicated it would be deferring its ruling until Monday. Sommers then made an emergency motion to continue the trial and stay the case pending a forthcoming decision by the Florida Supreme Court in Soffer. Philip Morris agreed to the relief sought and the trial court granted the motion.

In March 2016, the Florida Supreme Court issued its opinion in Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016), which reversed Williams and held that Engle plaintiffs may seek punitive damages on their non-intentional tort claims. Sommers then reset her motion for rehearing, which was subsequently denied by the trial court. Sommers filed a motion to reinstate the punitive damages claim for the non-intentional torts based on Soffer, and a motion for reconsideration with respect to the conspiracy to fraudulently conceal claim. The trial court denied the motion for reconsideration.

Trial commenced in March 2017. During jury selection, Sommers again raised the issue of reinstating her punitive damages claims as to the non-intentional torts. Philip Morris argued that if the trial court were inclined to allow the claim for punitive damages to be reinstated, then the trial would need to be continued to determine whether section 768.73(2), Florida Statutes, barred the punitive damages claim. The trial court ultimately declined to reinstate the punitive damages claims on the eve of trial. The case then proceeded to trial with only compensatory damages at issue.

After jury selection, Sommers expressly elected to abandon her alternative survival claim, explaining as follows:

PLAINTIFF’S COUNSEL: So the record is clear, after consulting with Ms. Sommers, the PR for the Estate of B[e]rt Sommers, we have decided, as a result of the stipulation, if you will, that Philip Morris made at the May 9th calendar call regarding a concession or stipulation that Mr. Sommers - or one of his causes of death was lung cancer caused by cigarette smoking, substantially medically caused by cigarette smoking.

Not being an issue any longer in the case, we are a making the election as between a wrongful death claim and survival to proceed with wrongful death.

On April 6, 2017, the jury returned a verdict finding that the decedent was a member of the Engle class because his addiction to cigarettes caused him to develop coronary artery disease before November 1996. The jury found Philip Morris liable for fraud and conspiracy, determining that the decedent relied on false or misleading statements by Philip Morris that legally caused his lung cancer and death. The jury then awarded Sommers $1 million in compensatory damages.

Sommers filed a motion for new trial on entitlement to punitive damages. The trial court granted the motion in part, permitting Sommers to seek punitive damages based only on her non-intentional tort claims. Despite ordering a new trial on punitive damages, the trial court entered a final judgment in Sommers’ favor for the compensatory damages award.

Philip Morris appealed the trial court’s final judgment and order granting a new trial. Sommers cross-appealed the trial court’s denial of her motion for new trial as it pertained to punitive damages on her intentional tort claims. Philip Morris ultimately did not oppose the cross-appeal. This Court subsequently affirmed as to the main appeal and partially reversed as to the cross-appeal, remanding for a trial on punitive damages on both Sommers’ intentional and non-intentional tort claims. Philip Morris USA, Inc. v. Sommers, 289 So. 3d 17 (Fla. 3d DCA 2019).

On remand, Philip Morris filed a motion to apply the current version of section 768.73, Florida Statutes. It argued that Sommers’ punitive damages claims were barred because the decedent died after the effective date of the statute (October 1, 1999) and Philip Morris had already paid hundreds of millions in punitive damages for the same course of conduct. While the trial court initially denied the motion based on a district split concerning the applicability of section 768.73(2) in Engle cases, the Florida Supreme Court ultimately decided in Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 125 (Fla. 2021), that the "1999 amendments to section 768.73 applied] in Engle progeny wrongful death actions in which the decedent died after the effective date of the amendments."

Philip Morris then moved to vacate the trial court’s prior order denying their motion to apply the current version of section 768.73 and for summary judgment on Sommers’ punitive damages claims. Sommers filed a response in opposition. On June 21, 2022, the trial court issued its order granting Philip Morris’ motion for final summary judgment. This appeal timely followed.

DISCUSSION

[1] This Court reviews the trial court’s order on the motion for summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Issues involving the interpretation of a statute are also reviewed de novo. Velez v. Miami-Dade Cnty. Police Dept., 934 So. 2d 1162, 1164 (Fla. 2006). The trial court’s finding of waiver, however, is reviewed for abuse of discretion. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 305 (Fla. 2017).

While Sommers does not dispute the trial court’s conclusion that the current version of section 768.73(2) applied to her wrongful death action, she nevertheless contends the trial court erred in applying the statute. Sommers argues she was entitled to an evidentiary hearing to determine whether Philip Morris had been sufficiently punished pursuant to section 768.73(2)(b) and contends that the trial court erred by determining that such a hearing, or even a subsequent trial on punitive damages, would be futile. Sommers alternatively argues that even if sec- tion 768.73(2) barred her from recovering punitive damages on her wrongful death claim, she was still entitled to pursue punitive damages based on her survival claim relating to the decedent’s coronary artery disease. As discussed in greater detail below, we do not...