R.J. REYNOLDS TOBACCO COMPANY, Appellant,
BETTYE RYAN, as personal representative of the Estate of THOMAS RYAN, and BETTYE RYAN, individually, Appellees.
final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge;
L.T. Case Nos. 08-80000 (19) and 08-022579 (19).
William L. Durham II, Scott Michael Edson and Jeffrey S.
Bucholtz of King & Spalding LLP, Atlanta, GA, and
Washington, DC, and Robert C. Weill of Sedgwick LLP, Miami,
Peek Luka, Celene H. Humphries and Thomas J. Seider of
Brannock & Humphries, Tampa, Alex Alvarez of The Alvarez
Law Firm, Coral Gables, and Gary Paige of Gordon & Doner,
P.A., Davie, for appellees.
Engle progeny case, R.J. Reynolds Tobacco
Company ("RJR") appeals the final judgment entered
in favor of Thomas Ryan and his wife Bettye Ryan
("Plaintiffs") after the jury found RJR liable for
Mr. Ryan's chronic obstructive pulmonary disease. Both
parties raise several issues on appeal and cross-appeal,
however we write only to address: (1) RJR's argument that
the Surgeon General's Reports ("the Reports")
were erroneously admitted into evidence and improperly used
to establish addiction-causation and to bolster expert
opinions; and (2) Plaintiffs' argument that, in the event
of reversal, they should be permitted to amend the complaint
to seek punitive damages on their negligence and strict
Philip Morris USA, Inc. v. Pollari, 228 So.3d 115,
120-30 (Fla. 4th DCA 2017), we recently held that the very
same Reports constitute hearsay, are inadmissible as either
public records or adoptive admissions, and may not be used to
impermissibly bolster the opinions of testifying experts.
Because the Reports were relied on at every major stage of
the trial and used "to unfairly buttress [the
plaintiff's] factual contentions . . . using the
imprimatur of the Surgeon General of the United States,
" we also held that the plaintiff could not meet her
burden of showing that the error was harmless. Id.
admission of, and extensive reliance on the Reports in the
present case was equally erroneous. Just as is
Pollari, Plaintiffs "relied on these Reports at
every major stage of the trial for numerous propositions, and
read various portions during opening statements, the
presentation of expert witness testimony, and closing
arguments." Id. at 119. Plaintiffs also
projected key statements from the Reports on slides for the
jury to review and used those slides to bolster the opinions
of one of their experts. Overall, the Reports were presented
as authoritative and conclusive evidence that nicotine
exposure essentially rewires the brain and removes an
individual's choice to continue smoking and that nicotine
addiction is the fundamental reason why individuals persist
in using tobacco products. In other words, the Reports were
used to unfairly buttress Plaintiffs' factual contentions
concerning two key contested issues at trial: addiction and
addiction-causation. See Philip Morris USA, Inc. v.
Douglas, 110 So.3d 419, 431-32 (Fla. 2013) (noting that
"proving class membership often hinges on the contested
issue of whether the plaintiff smoked cigarettes because of
addiction or for some other reason"). Considering the
extensive use of the Reports at trial, Plaintiffs cannot meet
their burden of showing that the error was harmless. See
Pollari, 228 So.3d at 130-31; see also R.J. Reynolds
Tobacco Co. v. McCoy, Fla.L.Weekly D2408, D2408 (Fla.
4th DCA Nov. 8, 2017). Accordingly, we reverse and remand for
a new trial.
light of our disposition, Plaintiffs argue that this Court
should remand with instructions that the trial court grant
their previously denied request to seek punitive damages on
their negligence and strict liability claims pursuant to
Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219
(Fla. 2016). RJR concedes that Plaintiffs are free to seek
the trial court's leave to add a request for punitive
damages on the non-intentional tort claims, but argues that
it is inappropriate for this Court to grant such a request
because the trial court must first find that Plaintiffs have
proffered a reasonable evidentiary basis to seek punitive
damages on those claims. We agree with RJR and hold that, on
remand, Plaintiffs may seek leave from the trial court to add
claims for punitive damages on their negligence and strict
liability counts. See McCoy, Fla.L.Weekly at D2408
("On remand, the plaintiff is free to seek leave from
the trial court to add claims for punitive damages on his
negligence and strict liability counts.").
and remanded for a new trial.
and Taylor, JJ., concur.
Engle v. Liggett Grp., Inc.,
945 So.2d 1246 (Fla. ...