By Pamela C. Maloney, J.D.
The remand of an Engle-progeny case on the sole issue of punitive damages did not require retrial of issues that resulted in award of over $2.1 million to a former smoker’s widow.
The widow of an ex-smoker who died of lung cancer caused by a 50-year addiction to cigarettes containing nicotine was entitled to a trial limited to the issue of punitive damages, the U.S. Court of Appeals for the Eleventh Circuit ruled, rejecting big tobacco’s claim that a remand for a trial on the issue of punitive damages also required relitigation of the liability issues that already had been resolved in the widow’s favor. The decision affirmed the jury’s compensatory damages award in the amount of $2,125,000, which the tobacco company was ordered to pay, along with interest, without delay (Sowers v. R.J. Reynolds Tobacco Co., September 15, 2020, Carnes, E.).
The widow of a Florida resident who had died from lung cancer caused by his long addiction to cigarettes successfully sued a number of tobacco companies/cigarette manufacturers, including R.J. Reynolds Tobacco Company and Philip Morris USA, Inc., for her husband’s wrongful death. After determining that: (1) the deceased was a member of the Engle class; (2) addiction to cigarettes containing nicotine was the legal cause of his death; and (3) smoking R.J. Reynolds’ cigarettes was the legal cause of his lung cancer and death, the jury awarded the widow $4.25 million in compensatory damages. This amount was reduced to $2.125 million based on the jury’s finding that the deceased and R.J. Reynolds were each 50 percent at fault. The jury rejected the widow’s claims for fraudulent concealment and conspiracy to fraudulently conceal, finding that the deceased smoker’s reliance on any statements concerning the health effects and/or addictive nature of cigarette smoking made by the tobacco companies was not a legal cause of his death [see Products Liability Law Daily’s February 13, 2015 analysis].
R.J. Reynolds appealed, seeking a new trial on the trial court’s exclusion of marital-discord evidence as irrelevant because it had occurred long before the deceased developed lung cancer and was unfairly prejudicial. The widow cross-appealed, seeking a new trial on the issue of punitive damages, which had not been presented to the jury during the first trial.
Evidence of marital discord. The marital-discord evidence R.J. Reynold’s sought to introduce involved the couples’ divorce and remarriage more than 20 years before the smoker’s death. According to the court of appeals, the jury had heard extensive evidence about the deceased’s long history of alcohol abuse and how it had harmed the couple’s marriage. Although evidence of the couple’s marital discord could have affected how the jury viewed the widow’s testimony about her husband and could have given the jury a fuller understanding of the couple’s many years of life together, the probative value of the marital-discord evidence did not outweigh its prejudicial value given that it involved the couple’s divorce, which had occurred more than two decades earlier. In addition, it was duplicative of the evidence the jury heard with regard to how the deceased’s heavy drinking had adversely affected his marriage.
Punitive damages trial. In reliance on a 2013 Florida District Court of Appeal ruling, the lower court had held that punitive damages were not available on negligence and strict liability claims on which the widow had prevailed, but were only available on the claims based on fraudulent concealment and conspiracy to fraudulently conceal, on which she had not prevailed. However, after the trial was over, the Florida Supreme Court in Soffer v. R.J. Reynolds Tobacco Co., [see Products Liability Law Daily’s March 17, 2016 analysis] held that Engle-progeny plaintiffs like the widow in this case could pursue punitive actions on all claims properly raised in their individual actions, thereby reversing the decision upon which the lower court had relied. Thus, the widow was entitled to a remand for purposes of a trial on the issue of whether she should receive punitive damages.
Reexamination Clause. Although R.J. Reynolds did not dispute that the widow was entitled to a trial on the issue of punitive damages, it argued that under the Reexamination Clause of the Seventh Amendment, there was no way to litigate punitive damages without reexamining the first jury’s findings concerning the conduct of the tobacco companies. Thus, according to the tobacco company, a full retrial on the liability issues was necessary if there was a new trial on punitive damages. In response, the widow contended that allowing a second jury to determine the punitive damages issue alone did not violate the Reexamination Clause because punitive damages only concerned R.J. Reynold’s conduct, which the first jury had not evaluated in reaching its findings on the liability issues.
The Eleventh Circuit rejected R.J. Reynolds’ argument, explaining that comparative fault and punitive damages are distinctly different issues. Fault is about responsibility for bringing about an injury and comparative fault is about how much of the entire cause of the injury each party was responsible for. Punitive damages are about whether a defendant should be punished or forced to pay more than the amount necessary to compensate the plaintiff for the injury the defendant caused. In addition, comparative fault is an affirmative defense that can reduce the amount of compensatory damages, but it cannot reduce the amount of punitive damages and has no application to the issue of punitive damages.
In this case, the findings underlying the first jury’s verdict were concerned solely with determining the amount of compensatory damages that would be awarded. Specifically, the jury determined that because the deceased was addicted to cigarettes and his addiction was a legal cause of his death, he qualified as a member of the Engle class. This finding did not involve a determination as to whether R.J. Reynolds had acted with actual knowledge of the wrongfulness of its conduct and, despite that knowledge, intentionally had pursued that course of conduct, knowing that there was a high probability the deceased could be injured by the conduct. Nor did the jury consider whether R.J. Reynolds’ conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct. These considerations raised questions that a remand jury would have to consider in order to award punitive damages based on evidence of R.J. Reynolds’ intentional misconduct or gross negligence. Thus, the class membership issues resolved by the first jury were so distinct and separable from the punitive damages issues that they did not need to be retried by the remand jury.
Similarly, the first jury’s comparative fault determination in this case did not require it to make any findings that were interwoven with those that a remand jury would have to make in reaching a punitive damages verdict. The factual findings as to the negligence and strict liability of tobacco companies had been established by the Engle I jury and were applied as a matter of law in all subsequent Engle-progeny trials brought by individual class members. Thus, the first jury was not asked to examine R.J. Reynold’s conduct in order to measure the nature or extent of its negligence or strict liability. Instead the jury was asked to find the extent to which the deceased’s own conduct was a legal cause of his injury and to express his share of fault as a percentage of the total fault or responsibility for his alleged injuries. The first jury found that both R.J Reynolds and the deceased were 50 percent at fault, as instructed by the court and, therefore, the remand jury will not be permitted, much less required, to consider comparative fault. Thus, the comparative fault issue was not interwoven with the punitive damages issue so as to require a new trial on that issue.
As for the gross negligence alternative basis for punitive damages, the Eleventh Circuit noted that the comparative fault instructions given to the first jury did not ask it to consider whether R.J. Reynolds’ conduct was so reckless and wanting in care that it constituted a conscious disregard or indifference to the life, safety, or tights of persons exposed to such conduct. Thus, the question of Reynold’s gross indifference also was left for the remand jury.
The case is No. 18-11901.
Attorneys: Richard M. Heimann (Lieff Cabraser Heimann & Bernstein, LLP) for Mary Sowers. Stephanie Ethel Parker (Jones Day) for R.J. Reynolds Tobacco Co.
Companies: R.J. Reynolds Tobacco Co.; Phillip Morris USA, Inc.; Liggett Group, LLC; Dorsal Tobacco Corp.; Vector Group, Ltd., Inc.
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