Products Liability Law Daily Jury’s zero-damages award for past noneconomic damages reversed in smoker’s suit
Tuesday, March 24, 2020

Jury’s zero-damages award for past noneconomic damages reversed in smoker’s suit

By Susan Lasser, J.D.

The medical evidence at trial in support of the smoker’s claims, the jury’s award of economic damages and future noneconomic damages demonstrating the jury’s acceptance of the evidence about her condition, and the statutory criteria for evaluating the adequacy of damages led to reversal and remand.

Although a Florida appeals court disagreed with a smoker’s objection to a state trial court’s permitting evidence at trial of her personal health history unrelated to her chronic obstructive pulmonary disease (COPD), the court reversed the lower court’s order denying additur or a new trial on the jury’s zero-damages award for past noneconomic damages. Thus, the case was remanded on that issue only (Rozar v. R.J. Reynolds Tobacco Co., March 23, 2020, Osterhaus, T.).

The smoker filed suit for damages against R.J. Reynolds Tobacco Company as a member of the class defined by Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). She had been a cigarette smoker since the 1950s and was diagnosed with COPD in 1994. Before the trial, she had moved unsuccessfully to keep RJR from mentioning a prior lawsuit she had filed against a breast implant manufacturer whose product had caused her to have health problems. At trial, the jury heard evidence about the smoker’s medical history and various surgeries that went beyond her smoking-related COPD. Ultimately, the jury awarded her $375,000 in compensatory damages; $25,000 for past medical expenses; $300,000 for future medical expenses; $0 for past pain and suffering; and $50,000 for future pain and suffering. Because the parties stipulated to $216,121 in past medical expenses, the trial court conformed the verdict to the parties’ stipulation. The smoker also sought additur or a new trial on the other damage awards. However, the trial court denied her motions. The smoker appealed.

Evidence of health history unrelated to tobacco use injuries. The smoker argued that the trial court erred by allowing RJR to present "irrelevant medical evidence that unlawfully prejudiced the jury." Generally, the appeals court noted, a trial court’s rulings on the admissibility of evidence should not be disturbed absent an abuse of discretion. However, that discretion is limited by case law and the rules of evidence, and a court’s "erroneous interpretation" is subject to de novo review; but evidentiary decisions should not be overturned if the evidence "is relevant and not more prejudicial than probative." The smoker specifically objected to the trial court’s allowing references to her breast implant lawsuit from the 1990s and evidence of her other non-COPD-related health problems and procedures. The court referenced prior cases that have held that when a plaintiff’s overall health is affected by prior and contemporaneous medical injuries and conditions unrelated to the lawsuit, courts can allow a defendant to cross-examine the plaintiff about them in order to correctly link the injury at issue with its related harms. The smoker’s case was based on her injuries from smoking and her COPD. The appellate court determined that the trial court did not abuse its discretion in allowing the jury to "broadly consider" the extent to which her damages claims were in part attributable to other, non-COPD medical problems, given the smoker’s history of those medical problems that overlapped with her COPD. According to the court, this evidence was not more prejudicial than probative; nor was it misleading to the jury or would result in a miscarriage of justice. The smoker was asked on cross-examination about the earlier lawsuit which helped to uncover her COPD in 1994. It was during a medical evaluation related to the breast implant lawsuit that a doctor had the smoker complete a pulmonary function test, which revealed her COPD. Thus, this was how the COPD diagnosis and the implant lawsuit were intertwined. The appellate court assessed that because of this relationship, and because the jury had to distinguish between the smoker’s various health issues to determine damages, the trial court did not abuse its discretion by allowing the lawsuit in evidence.

Damages—past pain and suffering. The smoker also sought additur or a new trial arguing that the damages awards were inadequate. Under Florida law, a court must consider the following when determining the adequacy of a damages award: (1) whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact; (2) whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable; (3) whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture; (4) whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and (5) whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons. Further, the appellate court observed that while the trial court "does not sit as a seventh juror," it will "reverse if the undisputed evidence supports a damages award that wasn’t made."

The jury awarded nothing for past pain and suffering in the case at bar. The smoker contended that the zero-dollar result was inadequate as a matter of law. According to the court of appeal, while there is no objective standard to measure pain and suffering damages, the evidence must support a jury’s zero-dollar award for it to stand. Further, the court found the case at bar similar to another state appellate case that held that if "the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law." It was undisputed that the smoker had COPD caused by her smoking, and the medical evidence at trial supported her testimony of difficulties caused by substantial and permanent lung damage. In fact, the trial court noted that the extensive evidence of her difficult COPD symptoms and treatment was substantially uncontroverted. In addition, the court of appeal found that the jury’s award of economic damages and future noneconomic damages demonstrated the jury’s acceptance of the evidence about her condition. The court, therefore, concluded that based on the statutory criteria for evaluating the adequacy of damages and the uncontroverted evidence, the zero verdict for past pain and suffering was inadequate. The court reversed and remanded the lower court’s order denying the motion for additur or new trial as to the past pain and suffering award.

Damages—future pain and suffering and future medical expenses. The smoker also challenged the damages awarded for future pain and suffering, $50,000, and future medical expenses, $300,000, as inadequate. The court of appeal found that these were not insignificant sums, and noted that it gives "great latitude" to jury determinations on future damages. As such, the court said it did not find that the record in the case was a basis for reversing these awards as inadequate and affirmed the future damages awards.

The case is No. 1D18-4029.

Attorneys: John S. Mills (The Mills Firm, P.A.) for Myra Rozar. Troy A. Fuhrman (Hill Ward Henderson), David C. Reeves (Moseley Prichard Parrish Knight & Jones) and Stephanie E. Parker (Jones Day) for R. J. Reynolds Tobacco Co.

Companies: R. J. Reynolds Tobacco Co.

MainStory: TopStory DamagesNews EvidentiaryNews TobaccoProductsNews FloridaNews

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