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PHILIP MORRIS USA INC. v. COHEN
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.
Nos. 4D10-3534, 4D10-4065.
District Court of Appeal of Florida, Fourth District.
September 12, 2012.
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.
POLEN, J. In this Engle1-progeny case, Philip Morris USA, Inc. ("PM USA") and R.J. Reynolds Tobacco Company ("RJR"), appeal final judgments following jury verdicts, awarding Robin Cohen, as personal representative of the estate of her late-husband Nathan Cohen, $10 million in non-economic compensatory damages and $10 million in punitive damages, from each appellant. The jury found each party one-third responsible for Nathan's death. Based on that apportionment, and after denying appellants' motions for judgment as a matter of law, new trial, and remittitur, the trial court entered final judgment against each appellant for $13,333,333. 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.2 We approve of the amount of punitive damages awarded by the jury; therefore, the only issue to be decided on remand is appellee's entitlement to the award, which will be resolved when the jury determines whether Nathan reasonably relied on statements or omissions made by appellants within the applicable statute of repose period. 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
large company would not do anything to hurt the people," and continued to smoke "because there was never any proof that it wasn't okay." She testified that sometime around "the mid '80s," Nathan became aware of the detrimental health effects of smoking cigarettes. He tried to quit (cold turkey, hypnosis, and classes) but was unsuccessful. Nathan was diagnosed with COPD, and then with small cell lung cancer in 1994. 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:
2. While we reverse on this issue because the trial court failed to instruct the jury on the statute of repose, we reject appellants' argument that appellee failed to prove reliance. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1069 (Fla. 1st DCA 2010) ("[T]he record contains abundant evidence from which the jury could infer Mr. Martin's reliance on pervasive misleading advertising campaigns for the Lucky Strike brand in particular and for cigarettes in general, and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health.").
3. Appellee's response that appellants' proposed instruction was a misstatement of the law, and reliance on Laschke v. Brown & Williamson, 766 So.2d 1076 (Fla. 2d DCA 2000), is mistaken. Laschke held that "[i]n claims alleging conspiracy, the critical date for statute of repose purposes should be the date of the last act done in furtherance of the conspiracy." Id. at 1079 (emphasis added). Here, appellants' requested a jury instruction as it related to the fraudulent concealment claim, not the accompanying conspiracy claim.
4. The record in this case, like the record in Martin and Townsend 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.
Townsend, 90 So.3d at 313 (citing Martin, 53 So.3d at 1070-72). As in Martin and Townsend, a proper evidentiary basis exists for imposition of such an amount as to each appellant.
5. In this appeal, appellants do not argue that the awards will cause them financial ruin.
6. The Williams Court explained:
Respondent argues that she is free to show harm to other victims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible — although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.
Id. at 355, 127 S.Ct. 1057.
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