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From Products Liability Law Daily, March 8, 2018

Court’s competence throughout eventful trial secures damages awards against tobacco companies

By Leah S. Poniatowski, J.D.

R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., and Lorillard Tobacco Company were unsuccessful in their appeal of an Engle-progeny case that awarded significant damages to the injured smoker, the U.S. Court of Appeals for the Eleventh Circuit ruled, finding no abuse of discretion on the part of the lower court on several of its jury instructions, deference to Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), or handling of an unexpected medical emergency before the jury (Burkhart v. R.J. Reynolds Tobacco Co., March 7, 2018, Tjoflat, G.).

A long-term smoker who developed chronic obstructive pulmonary disease (COPD) filed a multi-count products liability lawsuit against three tobacco companies—R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., and Lorillard Tobacco Company (collectively, the tobacco companies)—as part of the Engle progeny cases. She sought compensatory and punitive damages against the tobacco companies. The trial was divided into two phases, the first concerning the tobacco companies’ liability for compensatory and punitive damages, comparative negligence, and apportionment thereof. The jury was instructed to honor the findings of the Engle jury to establish the conduct elements of negligence, strict liability, fraudulent concealment, and conspiracy to fraudulently conceal. The second phase focused on the amount of punitive damages.

During the first phase, the smoker experienced a medical emergency in the presence of the jury and was taken to the hospital. After the jurors were questioned about their ability to remain impartial in light of the events, they all replied they could and the trial resumed. The jury returned a verdict in favor of the smoker on all counts and awarded her $5 million in compensatory damages—apportioning 25 percent to R.J. Reynolds, 15 percent to Philip Morris, and 10 percent to Lorillard. The jury struggled to come to a unanimous verdict on the punitive damages, but after receiving instructions from the court, they quickly came to a verdict in favor of the smoker, awarding $1.25 million against R.J. Reynolds, $750,000 against Philip Morris, and $500,000 against Lorillard. The tobacco companies filed the present appeal, principally challenging several jury instructions, and other alleged court conduct errors.

Statute of limitations instruction. The appellate court acknowledged that the trial court’s instruction with respect to the applicable statute of limitations was erroneous, but concluded that the error was harmless and did not merit a retrial. The parties had agreed to a jury instruction on the issue of the statute of limitations, as the tobacco companies had the burden to show that the period had lapsed when the smoker filed her lawsuit. Florida’s statute of limitations for products liability actions involving "creeping" diseases such as the smoker’s COPD provides that the limitations period begins "only when the accumulated effects of the deleterious substance manifest themselves to the claimant, in a way which supplies some evidence of causal relationship to the manufactured product." Accordingly, the key issue was when the "accumulated effects" of the smoker’s COPD presented a causal relationship between her smoking and the disease.

The parties had agreed that her claim would be barred if the jury found that the smoker "knew, or by the exercise of reasonable care should have known, before May 5, 1990, that she had COPD and that there was a reasonable possibility that her COPD was caused by cigarette smoking." The trial court believed that this instruction misstated the law and changed the instruction, telling the jury that "[t]he verdict form will ask you whether the Plaintiff knew, or in the exercise of reasonable care should have known, before May 5, 1990, that she was addicted to cigarettes, that she had COPD, and that her addiction would be causative of her COPD." The appellate court explained that the trial court did err in providing that instruction, but when examining the evidence in the record and the applicable law, no reasonable factfinder would conclude that the smoker’s general smoking-related symptoms were COPD or that she had a legal claim against the tobacco companies.

Punitive damages. The appellate court determined that the trial court did not act improperly when it addressed the jury and sustained the smoker’s objections during the tobacco companies’ closing arguments, or when the trial court instructed the jury when it was twice deadlocked. First, the trial court did not improperly prevent the tobacco companies from challenging the punitive damages request. The court had interjected on a few occasions during closing arguments because the tobacco companies’ counsel had put to issue the findings of the Engle decision on the tobacco companies’ concealment—which had been established, making the counsel’s statements suggesting there was no concealment misleading. Thus, the court’s interjection to clarify the legal standard against how the tobacco companies presented their closing arguments was not an error.

Second, the trial court’s instructions to the jury at the punitive damages phase of the trial were not coercive. After the liability for compensatory and punitive damages phase of the litigation was concluded, the trial moved to the second phase, which exclusively dealt with setting the amount of punitive damages. When that phase completed, the jury was instructed that they needed to return a unanimous decision on the amount of damages. The jury deliberated a short while and asked what to do if they could not come to a unanimous decision. The trial court discussed the issue with the parties, rejecting the tobacco companies’ request for an Allen charge on the basis that such a charge would be coercive in light of how briefly the jury had deliberated. Instead, the trial court provided an instruction asking the jurors to retain their honest beliefs as they were the "judges of the facts," but not to hesitate to re-examine their opinions or change their mind if they believed they were wrong.

After 40 minutes, the jury let the court know that they were still unable to reach a unanimous decision, at which time the court allowed the pattern Allen charge to be given, which asks the jurors to keep their honest beliefs, but consider the need to come to a unanimous decision in light of the expense, time, and likelihood of a similar outcome in a new trial. The jury returned a unanimous verdict for punitive damages 15 minutes later, awarding $1,250,000 against R.J. Reynolds, $750,000 against Philip Morris, and $500,000 against Lorillard.

The tobacco companies argued that the intermediary instruction, because it was provided in addition to the Allen charge, "tipped the balance" to being an inherently coercive instruction. The appellate court disagreed. The first instruction to the jury was a simple reminder that the verdict must be unanimous; the second instruction was less strong than an Allen charge and was an appropriate response to the jurors’ inquiry. The final instruction—the actual Allen charge—was verbatim to the pattern charge used in the circuit. Case law supported delivery of two Allen charges in the same trial in consideration of the totality of the circumstances. Here, the jurors had been instructed not to abandon their honest convictions and that they would not be told again to deliberate in the event of an impasse. Thus, the trial court did not abuse its discretion because it was not coercive in providing those instructions.

Comparative fault reduction. The appellate court also held that the trial court did not err with respect to the comparative fault reduction issues. First, the tobacco companies’ argument that the court incorrectly refused to reduce the compensatory award against them to reflect the jury’s allocation of comparative fault was foreclosed by the Florida Supreme Court’s recent decision in Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017) [see Products Liability Law Daily’s December 15, 2017 analysis]. The state high court determined that the comparative fault statute does not apply to Engle progeny cases in which the jury finds for the smoker on the intentional torts such that the compensatory damage awards in those cases are not subject to reduction. Accordingly, because the jury in the case at bar did just that, the comparative fault statute did not mandate a reduction of the smoker’s compensatory damages award.

The appellate court was also unpersuaded that the smoker waived her right to resist apportionment. The case upon which the tobacco companies based their argument was overruled by the state high court in Schoeff, and the smoker stated expressly in her complaint that she sought comparative fault apportionment as to her negligence claims, but not as to her intentional tort claim. The rhetorical question comparing the smoker’s negligent conduct with the tobacco companies’ intentional conduct during the smoker’s closing arguments did not rise to the level of a waiver of the smoker’s apportionment rights when considering the trial as a whole.

Due process violation. The appellate court upheld precedent holding that the jury’s findings in Engle were preclusive as to the conduct elements in Engle progeny cases concerning fraudulent concealment and conspiracy claims and was not a violation of due process. In one of the preceding cases, the court explained that "[t]he Due Process Clause requires only that the application of principles of res judicata by a state affords the parties notice and an opportunity to be heard so as to avoid an arbitrary deprivation of property," which was not true, as R.J. Reynolds had a full and fair opportunity to litigate the issues of common liability in Engle, had the opportunity to contest its liability, and had appealed the outcome to both the Florida Supreme Court, which affirmed the trial court, and the United States Supreme Court, which denied certiorari review. The appellate court acknowledged that Engle forged a "novel" concept of res judicata, but this did not violate due process, especially as the tobacco companies still have the right to litigate the causation and reliance elements of those intentional tort claims.

In-court medical emergency. The appellate court disagreed with the tobacco companies that the medical emergency supported its motion for a mistrial. Giving the trial court broad discretion as it is in the best position to evaluate the prejudicial effect of an unexpected event in the courtroom, the appellate court concluded that the trial court’s handling of the event, its consistent application of questions to each juror, the full cooperation of the jurors, and all responding convincingly that they could remain impartial reflected that the tobacco companies’ motion was unwarranted. Because there was no evidence to doubt the jurors or the court, there was no abuse of discretion in disposing of the motion for a mistrial.

Therefore, the trial court’s judgment was affirmed.

The case is No. 14-14708.

Attorneys: Elizabeth Joan Cabraser (Lieff Cabraser Heimann & Bernstein, LLP) for Pauline Burkhart. Stephanie Ethel Parker (Jones Day) and Joshua Reuben Brown (Greenberg Traurig, LLP) for Philip Morris USA, Inc. and R.J. Reynolds Tobacco Co.

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

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