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From Products Liability Law Daily, November 27, 2017

Reduction of damages to smoker’s widow reversed due to tobacco companies’ trial actions

By Georgia D. Koutouzos, J.D.

A cigarette smoker’s widow was entitled to the full, $1-million amount awarded by the jury as compensatory damages in her product liability lawsuit against two tobacco companies following her husband’s death from lung cancer, a state appellate panel in Florida determined, reversing the trial court’s comparative fault-based reduction of the award. The companies’ various statements at trial constituted a waiver of their right to subsequently request a reduction in the award consistent with the jury’s allocation of comparative fault, the court reasoned (Philip Morris USA Inc. v. Marchese, November 22, 2017, Klingensmith, M.).

The widow of a long-time cigarette smoker who had died from lung cancer sued the manufacturers of the brands of cigarettes he had smoked—Philip Morris USA Inc. and R.J. Reynolds Tobacco Co.—seeking compensatory and punitive damages under the theories of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. The jury awarded a total of $1.5 million in compensatory and punitive damages in the widow’s favor, but the trial court reduced the $1-million compensatory damages award by the amount of comparative fault attributed to the decedent. Both parties appealed the trial court’s decision, raising various arguments on appeal, among which was the widow’s assertion that the tobacco companies had waived their right to reduce the compensatory award by repeatedly having stated at trial that the award would not be reduced.

Jury instructions. At the Phase I charge conference, the parties disputed a proposed jury instruction on damages. The tobacco companies’ counsel stated that the companies were seeking apportionment only on the non-intentional torts and not on the intentional torts. Thereafter, the widow’s counsel proposed the following instruction: "Please note that if you find for Plaintiff on either or both of her claims for fraudulent concealment and/or agreement to conceal, the Court will not reduce the amount of Plaintiff’s damages by the percentage of fault you assign." Similarly, the widow’s proposed verdict form read: "You should not make any reduction because of any responsibility you charge to [the decedent]. …There will be no such reduction if you find for the Plaintiff on his claims for concealment or conspiracy to conceal." The tobacco companies’ proposed damages instruction was devoid of a comparative-fault instruction.

Accordingly, at the conclusion of the Phase I trial, the trial court instructed the jury consistent with the appellants’ arguments, that "in determining the total amount of damages, you should not make any reduction because of the responsibility of [the decedent]. … There will be no such reduction if you find for the Plaintiff on her claims for concealment or conspiracy to conceal."

In the opening statements for Phase II of the trial, the counsel for R.J. Reynolds acknowledged that the jury had awarded "a significant amount of money, one million dollars," and reminded the jury that "there will be no reduction of that million dollars." Further, counsel stated, "[a]t the end of the day, [the widow’s] … award will not be reduced by that 55 percent[.]" In that same vein, during Phase II closing arguments, counsel for Reynolds suggested that the jury already had fully compensated the widow with an award of $1 million, implying that she would receive all of it by stating that "[the jury] sent a loud and clear message with that reward." Similarly, counsel for Philip Morris assured the jury that there would be no reduction in damages because it had determined that the tobacco companies were liable for the intentional torts. He stated, "[c]omparative fault will not apply, and [the widow] will receive 100 percent of the million dollars that you awarded." At the conclusion of Phase II, the jury awarded the widow punitive damages totaling $500,000, with $250,000 assessed against each company.

After trial, however, the tobacco companies moved to apply Florida’s comparative fault statute to the compensatory damages award by requesting a reduction in the award consistent with the jury’s allocation of fault.

Waiver of defense. Although the tobacco companies had pleaded the affirmative defense of comparative fault and had disagreed with a proposed jury instruction that comparative fault would not be applied, they nevertheless repeatedly referenced the fact that the widow would receive the entire compensatory damages award during the trial and did not reveal to the jury that they were going to seek comparative fault after the trial. Based on those facts, it was apparent that the two companies always had intended to seek an award reduction based on comparative fault.

The companies could not have it both ways, however; their repeated suggestions to the jury that there would be no reduction of the compensatory damages award were made in hopes of minimizing the amount of punitive damages awarded. At no point did the companies’ counsel inform the jury of their intent to seek a reduction of the compensatory damages award based on comparative fault, nor did they remain silent on the issue. Instead, the companies affirmatively represented that the widow would be fully compensated as a "shield" against the potential imposition of a large punitive damages award, all the while intending to use the comparative fault statute as a "sword" to reduce the amount awarded.

Relevant case precedent instructs that a party waives his or her right to object to a reduction when he or she tells the jury that comparative fault will apply, but the reverse also is true. In the instant case, the tobacco companies elected to waive their right to a reduction of the verdict when they repeatedly and expressly told the jury that comparative fault would not apply. Therefore, the trial court erred when it ruled that no waiver had occurred. Consequently, the comparative-fault reduction applied to the jury’s verdict was reversed and the case was remanded to the trial court for entry of a judgment in favor of the widow for $1.5 million and a determination of her entitlement to attorney fees. All other issues raised on the appeal and cross-appeal were affirmed without comment.

The case is No. 4D16-2003.

Attorneys: Joseph H. Lang (Carlton Fields Jorden Burt, PA) for Philip Morris USA Inc. Gregory G. Katsas (Jones Day) for R.J. Reynolds Tobacco Co. Lance V. Oliver (Motley Rice LLC) for Gertrude Marchese.

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

MainStory: TopStory DamagesNews DefensesLiabilityNews TobaccoProductsNews FloridaNews

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