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From Products Liability Law Daily, October 19, 2017

$35M judgment against cigarette makers in Engle progeny case upheld

By Susan Engstrom

Cigarette manufacturers Philip Morris USA, Inc. and R.J. Reynolds Tobacco Company were not entitled to a new trial in an Engleprogeny case brought by the husband of a deceased smoker, a Florida appeals court ruled, affirming the trial court’s $35 million judgment against the companies. The trial court did not err in allowing the husband to introduce evidence and present argument regarding the number of deaths caused by smoking. In addition, although the husband’s attorney had made improper comments during closing argument, they were not so highly prejudicial as to deprive the companies of a fair trial. Finally, the trial court did not abuse its discretion in declining to reduce the compensatory damages award by the smoker’s comparative fault because the action, at its core, was based on an intentional tort (Philip Morris U, Inc. v. Ledoux, October 18, 2017, Emas, K.).

In his Engle progeny claims against Philip Morris and R.J. Reynolds, the smoker’s husband alleged that his wife died from lung cancer caused by addiction to smoking cigarettes manufactured and marketed by the defendants. He asserted causes of action for strict liability, fraud by concealment, conspiracy to commit fraud, and negligence. The matter was tried before a jury.

Verdicts. At the conclusion of the first phase of the trial, the jury determined that the smoker was addicted to cigarettes containing nicotine and that smoking cigarettes manufactured by both Philip Morris and R.J. Reynolds was a legal cause of her lung cancer and death [see Products Liability Law Daily’s December 29, 2015 analysis]. The jury found in favor of the husband, allocating 47 percent of the comparative fault to each defendant and 6 percent to the smoker. The jury awarded the husband $10 million in compensatory damages for his pain and suffering. In the second phase of the trial, the jury awarded $12.5 million in punitive damages against each defendant. The trial court entered final judgment in favor of the husband, holding the cigarette makers jointly and severally liable for the $10 million in compensatory damages and each company liable for $12.5 million in punitive damages. The trial court denied all of the companies’ post-trial motions, including motions for a new trial and for a reduction in the compensatory damages award.

Deaths caused by smoking. On appeal, the cigarette makers argued that the trial court erred in allowing the husband to introduce evidence and present argument regarding the number of deaths caused by smoking. For example, the husband’s counsel had told the jury, over the defendants’ objection, that in 2014, there were "500,000 deaths per year from smoking just from lung cancer in that one year in the United States" and that there had been "20 million deaths since 1964 from smoking," repeating the number "20 million." However, the appeals court determined that this evidence was relevant to the issue of entitlement to punitive damages and bore upon the question of reprehensibility. Moreover, the trial court had properly guided and limited the jury’s consideration of this evidence by instructing them that in determining punitive damages, they could not punish a defendant for harm suffered by other individuals but they could consider harms suffered by others in deciding whether to punish a defendant for the reprehensibility or wrongness of its conduct. Thus, the trial court did not abuse its discretion in allowing evidence and argument on the number of deaths caused by smoking.

Closing arguments. The companies also contended that the following three arguments made by the husband’s counsel during closing argument were improper and, therefore, justified a new trial:

  1. But I can tell you this, if in 1996 someone had put an ad in the paper that [the husband] had read—he reads the paper every day – and the ad was, we will pay you $10 million, and all you have to do is you have to sit there and you have to watch your wife, the love of your life, choke and struggle and die in front of you—
  2. Then you have to bury her and you have to live alone for the next 19 years and the rest of your life, I submit to you that [the husband] would have said, thank you, but keep the money.
  3. If there was a way that [the husband] could wave a magic wand and bring his wife back in and she would walk in the door, he would walk right out that courtroom and right there, take her hand and say, come on, honey, let’s go home. He was not given that option. He is here because of what the Defendants did. And he’s going to ask you to hold them accountable.

Although the appeals court agreed that these arguments were improper, it determined that the trial court did not abuse its discretion in denying the companies’ motions for a mistrial and a new trial on that basis. Comment 1 was not properly preserved because the defendants urged, as a basis for reversal, a different objection from the one they raised at trial. Comment 3 also was not properly preserved because the companies did not object to it during trial. Although comment 2 was properly preserved by an objection, which the trial court correctly sustained, it was not so highly prejudicial as to deprive the defendants of a fair trial.

Compensatory damages. The trial court also did not abuse its discretion in denying the companies’ motion for remittitur. In considering the record in this case and other compensatory damages awards in similar Engle progeny cases, and giving proper deference to the jury’s award and the trial court’s subsequent review of that award, the appeals court could not say that the compensatory damages award obviously exceeded the reasonable range within which the jury could properly operate. Finally, the trial court properly denied the companies’ request to reduce the compensatory damages award by the percentage of comparative fault assigned by the jury to the smoker. According to the appeals court, at its core, this was an action based on an intentional tort.

The case is No. 3D16-675.

Attorneys: Daphne O'Connor (Arnold & Porter Kaye Scholer LLP) and Frank Cruz-Alvarez (Shook, Hardy & Bacon LLP) for Philip Morris USA, Inc. and R.J. Reynolds Tobacco Co. Robert E. Gordon (Gordon & Doner, PA) for Roland Ledoux.

Companies: Philip Morris USA, Inc.; R.J. Reynolds Tobacco Co.

MainStory: TopStory JuryVerdictsNewsStory DamagesNews EvidentiaryNews TobaccoProductsNews FloridaNews

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