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From Products Liability Law Daily, January 7, 2014

Smoker’s widow waives comparative fault defense; $1.825 million award reduced by 60 percent

By Pamela C. Maloney, J.D.

The widow of a cigarette smoker waived the comparative fault defense even as it related to findings that the manufacturer had engaged in the intentional tort of fraudulent concealment, a Florida district court of appeal ruled, affirming the trial court’s reduction of a jury’s verdict from $1.825 million to $730,000. In addition, the court recognized that also determined that its decision upholding the trial court’s refusal to instruct the jury on Florida’s statute of repose raised a conflict with a decision of the Fourth District court of appeal on the issue. Thus, the matter was certified to the Florida Supreme Court. (R.J. Reynolds Tobacco Co. v. HiottJanuary 3, 2014, Thomas, B.).

Background. A smoker, Kenneth Hiott, died in 1996 from lung cancer allegedly as a result of his use of cigarettes manufactured by R.J. Reynolds. His wife, Carolyn Hiott, sued the tobacco company for the wrongful death of her husband, asserting claims of strict liability, negligence, fraudulent concealment, and civil conspiracy to fraudulently conceal. The jury, after determining that the smoker was a member of theEngle class, found in favor of the widow, awarding her $1.6 million, and awarding the smoker’s son $225,000, for a total of $1.825 million. The jury assigned 60 percent of the fault to the smoker and 40 percent to the cigarette maker. Accordingly, the trial court reduced the award to $730,000. In addition, during the liability phase of the trial the jury determined that the widow was entitled to punitive damages; however, it awarded her zero dollars during the damages phase of the trial.

The widow challenged the reduction, arguing that Florida’s comparative fault statute did not apply because the cigarette maker had committed the intentional tort of fraudulent concealment. The cigarette maker challenged the trial court’s admission of evidence that it had successfully challenged new proposed tobacco warnings in federal court and the denial of its requested instruction on the statute of repose. The cigarette maker also claimed that the application of factual findings regarding its misconduct from prior litigation in Engle v. Liggett Group, Inc. violated due process.

Comparative fault. On appeal, the appellate court agreed with the trial court’s determination that the widow waived any argument against reducing the judgment because she sought apportionment of fault and damages in her complaint. In addition, the widow failed to inform the jury that the smoker’s comparative fault would not be applicable to her intentional tort claims. Although the widow had argued that because Florida law provides that a comparative fault defense does not apply to intentional torts thereby precluding waiver of the defense, the appellate court found that it would be misleading to fail to inform a jury that (1) no comparative fault would apply to the intentional tort claims; (2) they must allocate comparative fault without distinguishing between the intentional tort and negligence claims; (3) the trial court would reduce the total amount of damages by the percentage of fault charged to the smoker and (4) then refuse to apply comparative fault to the verdict. Throughout the trial, the widow accepted that her deceased husband was partially at fault for his smoking-related illness and death, indicating that she expected the jury to allocate some fault to her late husband. Her failure to inform the jury clearly that she was only conceding the possibility of comparative fault to the negligence claims and to seek apportionment on all counts in her complaint were sufficient to waive the defense, even as to the intentional tort claims.

Statute of Repose. With regard to its argument that the trial court erred in failing to instruct the jury that the widow could only recover on her fraudulent concealment and fraud-based conspiracy claims to the extent they rested on conduct that occurred after May 5, 1982, 12 years before the Engle suit was filed, the manufacturer acknowledged that the court’s decision in R.J. Reynolds Tobacco Co. v. Webb (93 So. 3d 331 (Fla. 1st DCA 2012) foreclosed this issue. In Webb, the court held that in interpreting the statute of repose, the last act done in furtherance of a conspiracy triggered the statute; thus, the repose statute did not run until the conspiracy had been completed. However, the court noted that its decision in Webb was in direct conflict with the Fourth Division’s decision in Phillip Morris USA, Inc. v. Hess (95 So. 3d 254 (Fla 4th DCA 2012, rev. denied 117 So. 3d 412 (Fla. 2013)), which found that the statute of repose barred a claim for punitive damages based on fraudulent concealment where the jury found that the plaintiff had relied only on conduct that occurred 12 years before the filing date of the Engle class action. Therefore, the court certified the conflict between its decision in Webb and the Fourth District’s decision inHess.

Evidence of prior litigation. The cigarette maker also objected to the trial court’s admission of evidence that in 2012, it had successfully challenged in federal court graphic tobacco warnings proposed by the federal Food and Drug Administration. The appellate court found that even if the trial court had committed error in admitting this evidence on the issue of punitive damages, it was harmless error because there was no reasonable possibility that the evidence affected the verdict. The evidence was very limited in its scope during the trial, and the graphic warnings themselves were not introduced. There was no evidence that this information affected the compensatory damages award and there was no award of punitive damages.

Due process claim. Finally, the court determined that the cigarette maker’s due process objection to the trial court’s application of the Engle findings to establish elements of the widow’s claims had been rejected by the Florida Supreme Court in Philip Morris USA, Inc. v. Douglas (110 So. 3d 419 (Fla. 2013),cert. denied, 134 S. Ct. 332 (2013)).

The case numbers are 1D12-5956 and 1D12-6008 (Consolidated).

Attorneys: Robert B. Parrish (Moseley Prichard Parrish Knight & Jones) and Stephanie E. Parker (Jones Day) for R.J. Reynolds Tobacco Co. Charles Farah (Farah & Farah, PA) for Carolyn Hiott.

Companies: R.J. Reynolds Tobacco Co.

MainStory: TopStory DamagesNews SofLReposeNews EvidentiaryNews TobaccoProductsNews FloridaNews

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