PHILIP MORRIS USA INC. v. COHEN Nos. 4D10-3534, 4D10-4065.
102 So.3d 11 (2012)
PHILIP MORRIS USA INC., and R.J. Reynolds Tobacco Company, Appellants, v. Robin COHEN, as Personal Representative of the Estate of Nathan Cohen, Deceased, Appellee.
District Court of Appeal of Florida, Fourth District.
Rehearing Denied December 31, 2012.
Gordon James, III , Eric L. Lundt and Lenore C. Smith of Sedgwick LLP, Fort Lauderdale, Gregory Katsas of Jones Day, Washington, D.C., and Stephanie E. Parker of Jones Day, Atlanta, GA, for appellant R.J. Reynolds Tobacco Company; Andrew S. Brenner of Boies, Schiller & Flexner LLP, Miami, and Gary L. Sasso of Carlton Fields, Tampa, for appellant Philip Morris USA Inc.
Robert S. Glazier of Law Office of Robert S. Glazier, Miami; Law Office of Gary Paige, P.A., Coral Gables; Trop & Ameen, P.A., Hollywood; and Alvarez Law Firm, Coral Gables, for appellee.
In this Engle
In this appeal, appellants contend that (1) the use of the Engle findings to establish elements of appellee's claims violates Florida law and due process; (2) appellee failed to prove legal causation (that a specific defect or tortious act or omission injured Nathan) and the trial court's instruction on causation was erroneous; (3) the trial court erroneously instructed the jury on appellee's fraudulent concealment claim; (4) the trial court abused its discretion in denying appellants' motions for remittitur because the non-economic compensatory damage awards are excessive; and (5) the punitive damage awards are excessive and violate due process.
We summarily reject appellants' first two contentions of error based on our opinion in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 717 (Fla. 4th DCA 2011). For the reasons set forth below, we affirm the compensatory damages award but reverse the punitive damages award because the trial court erred by not instructing the jury on the statute of repose in conjunction with appellee's fraudulent concealment claim — the only basis for the punitive damages award.
This case proceeded to trial in two phases, as approved by this court in Brown. See Brown, 70 So.3d at 714. After phase I, the jury determined that Nathan was an Engle class member (i.e., he had been addicted to cigarettes containing nicotine and the addiction was a legal cause of his COPD and lung cancer).
In phase II, the jury determined the issues of legal causation, comparative fault, compensatory damages, and punitive damages. Robin testified that Nathan believed the tobacco industry's reassurances about their products: "He believed that a
At the conclusion of phase II, the trial court instructed the jury that because Nathan was an Engle class member, it was bound by the following Engle findings: Appellants were negligent; sold defective cigarettes; concealed material information; and agreed to conceal such information. Appellants requested the following jury instruction:
The trial court denied the request. This was error.
Smith v. Hugo, 714 So.2d 467, 468 (Fla. 4th DCA 1998) (citation omitted).
"[A] claim of fraudulent misrepresentation and/or concealment requires proof of detrimental reliance on a material misrepresentation." Soler v. Secondary Holdings, Inc., 771 So.2d 62, 69 (Fla. 3d DCA 2000) (citing Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985)). Florida's statute of repose requires that any action "founded upon fraud" be filed within twelve years "after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered." § 95.031(2)(a), Fla. Stat. (2007). The Engle case was filed on May 5, 1994; therefore, appellee's fraudulent concealment claim had to be based on conduct that occurred after May 5, 1982 — she must prove that Nathan relied upon statements or omissions by appellants made after that date. The jury should have been instructed accordingly.
Limiting the new trial to the issue of Robin's entitlement to the punitive damage awards will not be confusing or prejudicial. See Purvis v. Inter-County Tel. & Tel. Co., 173 So.2d 679, 681 (Fla.1965) ("The trial court can by proper instructions to the jury and supervision of the trial process avoid any inferences or implications to be drawn from the previous award of damages... avoiding prejudice to [defendant]"); Griefer v. DiPietro, 625 So.2d 1226, 1229 (Fla. 4th DCA 1993) (reversal for new trial on liability only is appropriate "where the error complained of affects only the issues of liability").
"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.'" R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 312 (Fla. 1st DCA 2012) (quoting Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999)). In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), the Supreme Court identified "three guideposts" for assessing the reasonableness of punitive damages: (1) the degree of reprehensibility of the defendant's conduct; (2) the ratio between the punitive and compensatory damages; and (3) civil and criminal penalties for similar conduct. Townsend, 90 So.3d at 313 (citing Gore, 517 U.S. at 574-85, 116 S.Ct. 1589).
Id. (quoting R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1072 (Fla. 1st DCA 2010)) (quoting Engle, 945 So.2d at 1263-64).
We hold that the $10 million punitive damages awards in this case are not "out of all reasonable proportion"
In Townsend, "the ratio between the punitive damage award ($40.8 million) and the pre-apportionment compensatory damage award ($10.8 million) [was] 3.7 to 1, which [was] less than the 5 to 1 pre-apportionment ratio  upheld in Martin." Id. Nevertheless, the First District held
Id. at 315-16.
"The Supreme Court has been `reluctant to identify concrete constitutional limits on the ratio between harm ... to the plaintiff and the punitive damages award[.]'" Id. at 315 (quoting State Farm, 538 U.S. at 424, 123 S.Ct. 1513). The Court has cautioned that "[w]hen 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. However, "[t]he precise award in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff." Id.
Although the $10 million compensatory damage awards in this case are indeed substantial, the ratio between the punitive awards and the compensatory awards is 1:1. Under both federal and Florida due process requirements, the punitive damages are not excessive.
We also reject appellants' argument that the use of the Engle findings violated due process because it subjected them to punishment for non-party harms.
Philip Morris USA v. Williams, 549 U.S. 346, 353, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007). However,
Id. at 357, 127 S.Ct. 1057. The Court further explained:
Id. at 355, 127 S.Ct. 1057.
Here, the trial court protected against the risk; at appellants' request, the trial court instructed the jury as follows:
This instruction is consistent with Williams. See Townsend, 90 So.3d at 313 n. 7 (quoting Williams and State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), and holding that "[t]he jury here was instructed on the permissible uses of evidence of harm to nonparties.").
Finally, we reject appellants' argument that the trial court abused its discretion in denying their motions for remittitur because the $10 million non-economic compensatory damage awards are excessive. This court reviews a trial court's order denying a motion for remittitur for abuse of discretion. City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008). Florida law requires that "awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive." § 768.74(3), Fla. Stat. (2010).
"Under Florida law an award of non-economic damages must `bear a reasonable relation to the philosophy and general trend of prior decisions in such cases.'" Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir.2008) (quoting Gresham v. Courson, 177 So.2d 33, 39-40 (Fla. 1st DCA 1965)).
"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." Townsend, 90 So.3d at 311 (quoting Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361, 365 (Fla. 1974)). "[T]he amount of damages rests solely within the jury's sound discretion, and the jury's decision must be given great credence." Tobias v. Osorio, 681 So.2d 905, 907 (Fla. 4th DCA 1996). "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." Citrus Cnty. v. McQuillin, 840 So.2d 343, 347-48 (Fla. 5th DCA 2003).
In Townsend, the First District affirmed a $10.8 million compensatory damages award (before reduction for comparative fault) consisting of only non-economic damages suffered by the plaintiff/appellee as a result of the death of her husband:
90 So.3d at 311-12 (footnotes omitted).
As in Townsend, the jury in this case observed appellee testify and heard her first-hand account of her life with Nathan. Robin met Nathan in 1955; they married in 1957. The couple adopted two children, and Robin stopped working full-time to become a housewife. Although the couple divorced, they continued to see each other every day, and within two years, they remarried. Following their remarriage, they were "constant companions."
The jury also heard testimony of what the couple's life was like after Nathan's diagnoses. While caring for Nathan, Robin tore both of her rotator cuffs. Although the injuries were painful — she needed surgery — she testified that the emotional injury was worse than the physical pain. Eventually, Nathan stopped undergoing chemotherapy so as to maximize his remaining time with Robin. Nathan died at age 68; Robin was 66. Following Nathan's death, Robin explained that she has "had to grow old alone."
The evidence presented to the jury regarding Robin's pain and suffering is nearly identical to the evidence relied upon by the First District in Townsend. In this case, sixteen years had passed between Nathan's death and the trial. The jury heard testimony from appellee and her daughters that during this time, Robin has not remarried, and instead, has "had to grow old alone."
Id. at 312. We decline to disturb the $10 million compensatory awards.
Affirmed in part; Reversed and Remanded in part.
GROSS and LEVINE, JJ., concur.
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