VAN NORTWICK, J.
In this Engle
In this appeal, RJR contends that 1) it is entitled to a new trial because of several improper comments by Appellee's counsel in closing argument; 2) the use of the Engle findings to establish elements of Appellee's claims violates Florida law and due process; 3) Appellee failed to prove reasonable reliance by Mr. Townsend on any statement or act of RJR or its predecessor companies; 4) the compensatory damage award is excessive; and 5) the punitive damage award is excessive and violates due process.
With respect to the "closing argument" issue, we hold that by waiting until the end of closing argument to object to the argument and move for mistrial and by failing to object specifically to distinct portions of the argument, RJR failed to preserve this issue for appellate review. Engle, 945 So.2d at 1271-74; see also Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000). Accordingly, we find no abuse of discretion in the denial of the motion for new trial based on the closing argument. We affirm the second and third issues based on Martin, 53 So.3d at 1060.
RJR contends the compensatory damage award is excessive and, therefore, the trial court should have granted its motion for a new trial on damages or remittitur. We review the trial court's denial of the motion for an abuse of discretion. See Engle, 945 So.2d at 1263; McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003).
The purpose of compensatory damages is "to make the injured party whole to the extent that it is possible to measure his injury in terms of money." Mercury Motors Exp., Inc. v. Smith, 393 So.2d 545, 547 (Fla.1981); see also Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (explaining that compensatory damages "are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct"). The compensatory damage award in this case comprises only non-economic damages
Braddock v. Seaboard Air Line R. Co., 80 So.2d 662, 668 (Fla.1955); accord Citrus County v. McQuillin, 840 So.2d 343, 348 (Fla. 5th DCA 2003) ("Who can place a dollar value on a human life, measured by the loss and grief of a loved one? That difficult decision is generally one for the jury or fact finder, not the appellate court.").
"The fact that a damage award is large does not in itself render it excessive nor does it indicate that the jury was motivated by improper consideration in arriving at the award." Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361, 365 (Fla. 1974). And "[n]ot every verdict which raises a judicial eyebrow should shock the judicial conscience." Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970). A verdict should not be declared excessive "merely because it is above the amount which the court itself considers the jury should have allowed." Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977). The verdict should be disturbed only when "it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate." Id. at 1184-85.
These general principles are consistent with the legislative policy expressed in section 768.74, Florida Statutes (2009). This statute recognizes that "the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion." § 768.74(6), Fla. Stat. But the statute also requires courts to give "close scrutiny" to damage awards, section 768.74(3), Florida Statutes, and it lists several criteria for the court to consider in determining whether an award "exceeds a reasonable range of damages." § 768.74(5), Fla. Stat. The criteria in subsection (5) include whether the award is "supported by the evidence," whether the award "bears a reasonable relation to the amount of damages proved and the injury suffered," and whether the amount of the award is "indicative of prejudice, passion, or corruption" on the part of the jury.
Although the $10.8 million compensatory damage award in this case
The jury observed Appellee testify and heard her first-hand account of her life with Mr. Townsend. She and Mr. Townsend were wed young in 1956, enjoyed a very close relationship during their 39-year marriage, and were always together until Mr. Townsend became ill. Appellee was required to remain in Ocala to work to provide support for the couple while Mr. Townsend traveled to Chicago for medical treatment and surgery relating to his lung cancer, and then she cared for him as he lay dying during the final six months. Appellee described Mr. Townsend's suffering and premature death at age 59 from smoking, a tragic circumstance that had, and is likely to continue to have, an acute impact on Appellee for the rest of her life. Mr. Townsend was diagnosed just when Appellee was about to join him in retirement and realize their life-long dream of traveling together. Appellee has not remarried.
With this evidence, the jury was entrusted with the "difficult decision" of effectively placing a dollar value on Mr. Townsend to Appellee. See McQuillin, 840 So.2d at 348. Although the $10.8 million awarded by the jury is certainly at the outer limit of reasonableness for a case such as this, the award is not so inordinately large that it shocks our collective judicial conscience. Cf. id. at 347 (affirming $4.4 million non-economic damage award, but noting the award was "on the outer limit in size"). Judged by the factors set forth in section 768.74(5), Florida Statutes (2009), the amount of compensatory damages in this case is not beyond reason. Accordingly, we find no abuse of discretion in the trial court's refusal to second-guess the jury's award of compensatory damages.
RJR contends the punitive damage award in this case is excessive and violates due process.
The purpose of punitive damages is "not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future." Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla.1999). The amount of punitive damages to be awarded is an issue left to the discretion of the jury. Id. at 486-87 (quoting Wackenhut Corp. v. Canty, 359 So.2d 430, 435-36 (Fla.1978)). However, the imposition of a punitive damage award is subject to constitutional limitations because "[t]he Due Process Clause of the Fourteenth Amendment prohibits a state from imposing a `grossly excessive'
53 So.3d at 1072 (quoting Engle, 945 So.2d at 1263-64).
As to the first Martin criterion, we agree with Appellee that the $40.8 million punitive damage award in this case is not "out of all reasonable proportion" to RJR's conduct. The record of this case, like the record in Martin, 53 So.3d at 1070-72, is replete with evidence of the decades-long, wanton and intentional conduct by RJR in vigorously, persuasively marketing to the public (including young people) a product the company knew was addictive; willfully concealing the serious health hazards posed by cigarette smoking; affirmatively deceiving the public into believing that cigarettes may not be harmful; and refusing to remove certain ingredients in cigarettes (such as nicotine) that the company counted on to sustain sales.
As to the second criterion, we agree with Appellee that the $40.8 million punitive damage award will not cause RJR's financial ruin because RJR's stipulated net worth between 2006 and 2008 averaged approximately $8 billion. We are aware of the significant potential liability that RJR faces from thousands of other pending Engle progeny cases, but our review is limited to the impact of the award in this case on RJR. See Martin, 53 So.3d at 1072. Indeed, we have no way of knowing how many of the other Engle progeny cases will result in verdicts for the plaintiff, whether punitive damages will be awarded in those cases
As to the third criterion, the typical measure used to determine whether a "reasonable relationship" exists between the punitive and compensatory damages is the ratio of the awards. See Gore, 517 U.S. at 580, 116 S.Ct. 1589; Martin, 53 So.3d at 1071-72. Although there is no bright-line standard, the Florida Supreme Court observed in Engle that "[s]ingle-digit [ratios] are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution." Engle, 945 So.2d at 1264-65 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)). The reasoning in Engle accords with the United States Supreme Court's statement in State Farm that "in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." 538 U.S. at 425, 123 S.Ct. 1513.
Here, the ratio between the punitive damage award ($40.8 million) and the pre-apportionment compensatory damage award ($10.8 million) is 3.7 to 1, which is less than the 5 to 1 pre-apportionment ratio we upheld in Martin.
Both the compensatory and punitive damage awards in this case are significantly higher than any other damage awards approved by a Florida appellate court in a case involving the death of a single smoker.
The Supreme Court has been "reluctant to identify concrete constitutional limits on the ratio between harm ... to the plaintiff and the punitive damages award," State Farm, 538 U.S. at 424, 123 S.Ct. 1513. Nevertheless, it has identified a circumstance in which caution is required: "When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." State Farm, 538 U.S. at 425, 123 S.Ct. 1513. As the Supreme Court noted in Gore, however, there is no "simple mathematical formula" that marks the constitutional line. Gore, 517 U.S. at 582, 116 S.Ct. 1589. See also State Farm, 538 U.S. at 425, 123 S.Ct. 1513 ("We decline again to impose a bright-line ratio which a punitive damages award cannot exceed."); Martin, 53 So.3d at 1072 (rejecting RJR's argument that the United States Supreme Court adopted a bright-line 1 to 1 ratio as a limit on punitive damages). We find instructive the reasoning of the Eighth Circuit in Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir.2005). There the court found that the amount of the punitive damages award was excessive under both state law and federal due process guarantees. Applying the three Gore guidelines as restated in State Farm, the Boerner court found that the punitive award of $15 million was "excessive when measured against the substantial compensatory damages award." Id. at 603. The court explained that:
Id. (citations omitted).
Here, the $10.8 million compensatory damage award — which is substantial by any measure — justifies a lower ratio than 3.7 to 1. Although we find the $40.8 punitive damage award excessive under the Gore and State Farm criteria, a 1 to 1 ratio is unwarranted, however, because the
In sum, applying the Gore and State Farm criteria, in view of the substantial compensatory damages awarded here, we agree with RJR that the $40.8 million punitive damage award in this case is constitutionally excessive. Thus, it was error to deny RJR's motion for new trial or remittitur. Accordingly, we reverse and remand the punitive damages award for the limited purpose of permitting Appellee to choose between a new jury trial solely to determine punitive damages or acceptance of a remittitur judgment on the punitive damages award to be established by the trial court.
AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings consistent with this opinion.
MARSTILLER, J., concurs; WETHERELL, J., concurs in part and dissents in part with written opinion.
WETHERELL, J., concurring in part and dissenting in part.
I agree with the majority that RJR's first issue on appeal was not adequately preserved (and it is without merit in any event); that Martin is controlling as to the second and third issues; and that the punitive damage award is constitutionally excessive and must be reversed.
I joined the opinions affirming the judgments in two prior Engle progeny cases, Martin and R.J. Reynolds Tobacco Co. v. Hall, 70 So.3d 642 (Fla. 1st DCA 2011), but I cannot join the decision in this case. The $5 million non-economic damage awards in Martin and Hall raised my proverbial judicial eyebrow, but the $10.8 million
I recognize that a damage award should not be declared excessive simply because it
The award is comprised of only non-economic damages for the emotional suffering experienced by Appellee as a result of the death of her husband from lung cancer. I do not question that Appellee's suffering from the loss of her husband is real and significant and, like the majority, I recognize that these types of damages are inherently difficult to measure and that the task of doing so is typically left to the jury. However, juries do not have free reign to turn widows of life-long smokers into decamillionaires simply because RJR is "a deep-pocket defendant and `a present-day popular villain'"
When the damages awarded by the jury have no logical or rational relationship to the extent of the injury suffered by the plaintiff or when the award was unduly influenced by passion and prejudice, the court can and should remit the award or order a new trial on damages. See generally § 768.74, Fla. Stat. (1995) (requiring courts to closely scrutinize damage awards to ensure that they are not excessive using criteria similar to those discussed in Bould and the cases cited therein). The cases cited by Appellee in an attempt to justify the excessive compensatory damage award in this case involved awards to parents for the death of a child,
The non-economic damage award in this case is $6.4 million larger than the "outer
I recognize that RJR did not object to this argument at trial or raise it as an issue on appeal, and I am not necessarily suggesting that the argument would have met the Murphy test and required reversal had it been raised on appeal. However, the substance of this argument fortifies my view that the jury's compensatory damage award was based on passion, prejudice, or other improper considerations (namely, RJR's ability to pay a large award), and not a legitimate assessment of Appellee's emotional loss. Accord Gresham v. Courson, 177 So.2d 33, 39 (Fla. 1st DCA 1965) (finding support for the conclusion that non-economic damage award was excessive in the fact that the amount awarded by the jury was "the exact amount suggested by counsel for plaintiff in the course of oral argument to the jury and does not appear elsewhere in the trial proceedings."). Indeed, aside from this argument, there is no way to explain the eight-figure compensatory damage award in this case because the evidence of Appellee's non-economic damages consisted of little more than her testimony describing her long and happy marriage and testimony that her husband's death has been "very hard" on Appellee. Surely the law
While I have no trouble concluding that the $10.8 million non-economic damage award in this case is excessive, I do not have a precise answer for what the award should be.
The compensatory damage award in this case is well outside of this range, and according to the verdict information provided by Appellee,
Accordingly, for the reasons discussed above, I would hold that the trial court abused its discretion in denying RJR's motion for a new trial on damages or remittitur, and either reduce the pre-apportionment award (as this court did in Gresham and as the Third District did in Goldberg