Products Liability Law Daily Compensatory damages award against cigarette makers wrongly reduced by smoker’s comparative fault
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Thursday, April 13, 2017

Compensatory damages award against cigarette makers wrongly reduced by smoker’s comparative fault

By Susan Engstrom

In an Engle progeny case brought by an ex-smoker who alleged injuries as a result of smoking cigarettes manufactured by Philip Morris USA Inc. and Liggett Group LLC, a Florida appeals court largely upheld the trial court’s judgment in favor of the former smoker, but reversed and remanded its reduction of the jury’s compensatory damages award by the ex-smoker’s comparative fault. The state’s apportionment statute did not apply because the core of this action was grounded in intentional misconduct. In so ruling, the court certified conflict with three decisions by the state’s Fourth District Court of Appeal (Philip Morris USA Inc. v. Boatright, April 12, 2017, Silberman, M.).

In an Engle progeny case brought by an ex-smoker who alleged injuries as a result of smoking cigarettes manufactured by Philip Morris USA Inc. and Liggett Group LLC, a Florida appeals court largely upheld the trial court’s judgment in favor of the former smoker, but reversed and remanded its reduction of the jury’s compensatory damages award by the ex-smoker’s comparative fault. The state’s apportionment statute did not apply because the core of this action was grounded in intentional misconduct. In so ruling, the court certified conflict with three decisions by the state’s Fourth District Court of Appeal.

The ex-smoker and his wife filed suit against Philip Morris and the Liggett Group seeking to recover damages for the husband, who was a heavily addicted smoker, and for the wife, for loss of consortium. According to the complaint, the husband’s addiction to the tobacco companies’ cigarettes ultimately led to his diagnosis of chronic obstructive pulmonary disease (COPD) and two double-lung transplants. The plaintiffs asserted claims for negligence, strict liability, fraudulent concealment, and conspiracy to fraudulently conceal.

Jury verdict. The jury found that the ex-smoker was addicted to Philip Morris cigarettes and that his addition caused his COPD [see Products Liability Law Daily’s November 18, 2014 analysis]. According to the jury, Philip Morris’s concealment or omission of information regarding the smoking of cigarettes caused the ex-smoker’s COPD. The jury also found against both tobacco companies on the conspiracy claim, determining that their participation in an agreement to conceal was a legal cause of the former smoker’s COPD.

The jury allocated 85 percent fault to Philip Morris and 15 percent fault to the ex-smoker. The jury awarded the plaintiffs a total of $15 million in compensatory damages: (1) $2.5 million in economic damages for the ex-smoker; (2) $10 million in damages for his past and future pain and suffering; and (3) $2.5 million for the wife’s past and future loss of consortium. The jury also awarded $19.7 million in punitive damages against Philip Morris and $300,000 in punitive damages against the Liggett Group.

Trial court judgment. The trial court denied all of Philip Morris’s post-trial motions, but granted a request to reduce the compensatory damages award by the ex-smoker’s comparative fault. The court did not explain its reasoning. The court entered a final judgment under which the defendants were jointly and severally liable for $10,625,000 in compensatory damages to the ex-smoker and $2,125,000 in compensatory damages to his wife. In accordance with the jury’s verdict, the judgment awarded punitive damages of $19.7 million against Philip Morris and $300,000 against Liggett.

Comparative fault. The appellate court found that the trial court erred in reducing the compensatory damages award by the ex-smoker’s comparative fault. Florida’s comparative fault statute (§768.81) applies to "negligence cases" and explicitly does not apply to actions based on an intentional tort. It also instructs courts to look to the substance of the action when determining whether a case falls within the term "negligence cases."

The appeals court cited a decision by the state’s First District Court of Appeal, which stated that "although the plaintiff pled negligence and strict liability, the additional allegations of the intentional torts and the proof of affirmative, calculated misrepresentations in the tobacco companies’ advertising … supported the conclusion that this action ‘actually had at its core an intentional tort by someone’" [see Products Liability Law Daily’s June 25, 2013 analysis of R.J. Reynolds Tobacco Co. v. Sury]. Also cited by the appeals court was a dissent in another case stating that "[t]he gravamen of the charges is that the tobacco company intentionally designed its products in a defective manner and pursued a callous and intentional course of tortious conduct by fraudulent concealment" [see Products Liability Law Daily’s November 5, 2015 analysis of R.J. Reynolds Tobacco Co. v. Schoeff].

The appeals court agreed with Sury and with the dissent in Schoeff that the "core" of Engle progeny actions is intentional misconduct as a matter of law. Accordingly, the court reversed the trial court’s final judgment and remanded for the trial court to enter an amended judgment to reflect the full amount of the jury’s verdict. In doing so, the court certified conflict with Schoeff’s majority holding as well as with two other Florida cases [see Products Liability Law Daily’s January 7, 2016 analysis of R.J. Reynolds Tobacco Co. v. Calloway and its January 5, 2017 analysis of R.J. Reynolds Tobacco Co. v. Grossman] to the extent they held that the core of those actions was grounded in negligence and that the comparative fault statute was applicable to reduce the verdict by the smoker’s comparative fault.

Defendants’ issues on appeal. The court rejected the defendants’ arguments on appeal, including Philip Morris’s assertions that the punitive damages award was excessive and that a new trial was warranted because the trial court had allowed the plaintiffs’ counsel to inflame the jury during closing arguments. Also rejected was the Liggett Group’s contention that the trial court should have directed a verdict in its favor on the conspiracy claim because the ex-smoker’s de minimis use of its cigarettes did not cause his injury. The law of civil conspiracy holds co-conspirators liable for harm caused by other members of a conspiracy to commit an intentional tort.

The case is No. 2D15-622.

Attorneys: Adriana M. Paris (Shook, Hardy & Bacon LLP) and Geoffrey J. Michael (Arnold & Porter LLP) for Philip Morris USA Inc. Karen H. Curtis (Clarke Silverglate, PA) and Leonard A. Feiwus (Kasowitz, Benson, Torres & Friedman LLP) for Liggett Group, LLC. Celene H. Humphries (Brannock & Humphries) for Richard Boatright and Deborah Boatright.

Companies: Philip Morris USA Inc.; Liggett Group, LLC

MainStory: TopStory DamagesNews EvidentiaryNews TobaccoProductsNews FloridaNews

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