Products Liability Law Daily Prejudicial $23.6B punitive award against R.J. Reynolds sent back for new trial
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Monday, February 27, 2017

Prejudicial $23.6B punitive award against R.J. Reynolds sent back for new trial

By Sara Cracau, J.D.

Counsel’s disparaging comments in a personal injury action against R.J. Reynolds accusing the tobacco manufacturer of failing to "take responsibility" or "apologize" to the injured consumer despite several admonishments by the court, warranted reversal of a trial court’s decision and a new trial, a Florida appeals court ruled, finding that the jury’s unprecedented punitive award of $23.6 billion clearly showed the great weight given to the presentation of counsel for the injured consumer (R.J. Reynolds Tobacco Co. v. Robinson, February 24, 2017, Winokur, T.).

The personal representative of the estate of a deceased consumer who died of lung cancer resulting from a tobacco addiction brought an action against R.J. Reynolds Tobacco Company seeking damages for his death. Prior to trial, Reynolds filed a motion in limine seeking to preclude arguments or comments that disparaged Reynolds for defending itself or failing to take responsibility or apologize to the consumer. The trial court granted the motion in part and ordered counsel not to disparage Reynolds for defending itself in the litigation and not to "suggest that Reynolds should apologize to [the consumer]."

The trial was conducted in two phases. The first phase encompassed issues of class membership, liability, comparative fault, compensatory damages, and entitlement to punitive damages. In his closing argument, counsel for the consumer began with a parable about a man called "Lie" dressed in stolen clothes from a man called "Truth," using this argument to characterize Reynolds’ defense as a scheme to deceive the jury. He repeatedly compared the company to a "drowning swimmer" willing to lie, cheat, and deceive. The jury found that the decedent was addicted to cigarettes containing nicotine and that smoking cigarettes manufactured by Reynolds was a legal cause of his lung cancer and death. The jury awarded approximately $9.59 million in non-economic compensatory damages to the deceased’s son and approximately $7.3 million to the deceased’s representative, apportioning fault to Reynolds at 70.5 percent, and 29.5 percent to the decedent.

The second phase of the trial focused on punitive damages. The jury returned a verdict of $23.6 billion (see Products Liability Law Daily’s July 21, 2014 analysis). Reynolds filed a post-trial motion for judgment, new trial, or remittitur, arguing that the punitive damage award was so excessive that a new trial was warranted on all issues. The trial court agreed with the parties that the punitive award was "admittedly and clearly constitutionally excessive" and remitted the award to $16,893,833, the amount of the combined compensatory awards, giving the parties the option to reject the remittitur and demand a new trial on the amount of the punitive damages. Reynolds demanded a new trial, which the trial court granted. The trial court denied any further relief to Reynolds, concluding that the compensatory awards were not excessive. Reynolds appealed, challenging the court’s limitation of the grant of a new trial to the issue of the amount of the punitive damages award.

Impropriety of disparaging comments. A party may not denigrate the opposing party for contesting the very facts that they have to prove. By reproaching Reynolds for its supposed failure to "come clean" and admit its past wrongdoing, the consumer’s counsel violated the principle that plaintiffs may not disparage defendants for contesting liability. It was similarly inappropriate to suggest that Reynolds was not "accepting responsibility." The consumer’s counsel argued that Reynolds had employed a dishonest strategy like the strategies used in the banking or real estate industries and that one of Reynolds’ witnesses was complicit in this deception scheme. Such allegations of conspiracy appeal to a jury’s imagination rather than encouraging reasoned analysis of facts and evidence, and incite prejudice and undue suspicion. The purpose of closing argument is to facilitate reasoned analysis of the facts and evidence presented—not to accuse the opposing party with outlandish conspiracy theories.

New trial warranted. The appeals court found that Reynolds was entitled to a new trial, as the consumer’s counsel’s improper arguments were so highly prejudicial and inflammatory that Reynolds was denied a fair trial. The consumer’s counsel accused Reynolds’ counsel of participating in a scheme of deception and he denigrated him as a criminal predator that the jury must fight. In such a case, it is insufficient for the trial court to simply sustain objections and offer flaccid admonishments to "move along" or "finish up." The trial court had to clearly convey to counsel, even in the jury’s presence, that misconduct would not be tolerated. Finding the record replete with improper arguments and comments clearly intended to stir the jury’s passions, the appellate court concluded that the absurdly excessive jury award proved that the jury gave great weight to the consumer counsel’s presentation.

The case is No. 1D15-0989.

Attorneys: Charles R.A. Morse (Jones Day) and Charles F. Beall, Jr. (Moore, Hill & Westmoreland, PA) for R.J. Reynolds Tobacco Co. David J. Sales (David J. Sales, PA) for Cynthia Robinson.

Companies: R.J. Reynolds Tobacco Co.

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