United States District Court, M.D. Florida, Jacksonville Division
Bernard Cote, as Personal Representative of the Estate of Judith Berger, Plaintiff,
Philip Morris USA, Inc., Defendant.
G. CARR SR. U.S. DISTRICT JUDGE. 
“Engle-progeny” case is before me, once
more, on a trio of post-trial motions filed by the Defendant,
Philip Morris USA, Inc. The first is Philip Morris's
“Renewed Motion for New Trial or in the Alternative
Remittitur of the Punitive Damages Award.” (Doc. 210).
The second is Philip Morris's “Renewed Motion for
Judgment as a Matter of Law on Plaintiff's Punitive
Damages Claims.” (Doc. 211). The third is Philip
Morris's “Renewed Motion to Amend the Judgment to
Apply Credit for Guaranteed Sum in Accordance with
Stipulation.” (Doc. 212). Plaintiff Bernard Cote, as
the personal representative of the estate of Judith Berger,
has responded to each of the motions. (Docs. 213, 214, 215).
For the reasons below, I will deny each of them.
original plaintiff in this case, Mrs. Berger, was a former
cigarette smoker who developed chronic obstructive pulmonary
disorder (“COPD”) after decades of smoking. On
October 3, 2013, she filed an Amended Complaint against
several tobacco companies, including Philip Morris, alleging
that their cigarettes were responsible for her COPD. (Doc. 5,
Amended Complaint). Mrs. Berger sued the defendants under
theories of negligence, strict liability, fraudulent
concealment, and conspiracy to conceal.
case proceeded to a nine-day bifurcated jury trial against
Philip Morris. After the first phase of the trial, the jury
returned a verdict for Mrs. Berger on each of her theories of
liability. (Doc. 92). The jury awarded Mrs. Berger $6.25
million in compensatory damages, though it also found that
she was 40% comparatively at fault.
(Id.). The jury further “f[ound] by clear
and convincing evidence that, ” based on its verdict
for Mrs. Berger on her fraudulent concealment and
conspiracy-to-conceal claims, “punitive damages [we]re
warranted against Philip Morris under the circumstances of
this case.” (Id. at 4). Thus, the case
went to a second phase of trial where the jury decided how
much in punitive damages to award. Following this second phase,
the jury returned a punitive damages verdict of $20, 760,
000.14. (Doc. 100).
trial, I denied Philip Morris's motion for remittitur of
the damages award and a new trial based on improper closing
arguments. (Doc. 197). I also denied Philip Morris's
motion for judgment as a matter of law on all claims, in
which Philip Morris asserted due process and federal
preemption arguments. (Doc. 196). However, I granted Philip
Morris judgment as a matter of law on the fraudulent
concealment and conspiracy-to-conceal claims for lack of
proof. (Doc. 155). Consequently, I vacated the $20.7 million
punitive damage award. (Id. at 27, ¶ 2).
appeal, the Eleventh Circuit Court of Appeals affirmed the
denial of Philip Morris's motion for remittitur and a new
trial based on improper arguments, as well as the rejection
of Philip Morris's due process and federal preemption
arguments. Cote v. R.J. Reynolds Tobacco Co., 909
F.3d 1094, 1099, 1109 (11th Cir. 2018). But the Eleventh
Circuit reversed this Court's order granting Philip
Morris judgment as a matter of law on Mrs. Berger's
intentional tort claims. Id. at 1099, 1109. Thus,
the Eleventh Circuit remanded the case with instructions to
enter “judgment in Plaintiff's favor on claims for
fraudulent concealment and conspiracy to fraudulently conceal
and [to reinstate] the jury's corresponding punitive
damages award.” Id. at 1110.
the case was on appeal, Mrs. Berger passed away and Bernard
Cote, as the representative of Mrs. Berger's estate, was
substituted as the plaintiff. On January 16, 2019, I entered
an amended judgment conforming with the Eleventh
Circuit's mandate. (Doc. 209). About a month later,
Philip Morris filed the instant trio of motions.
Renewed Motion for New Trial or in the Alternative Remittitur
of the Punitive Damages Award
Morris argues that I should order a new trial because
“[t]he punitive damages award in this case is so
grossly excessive and unsupported by the evidence that it
could only have been the product of passion or
prejudice.” (Doc. 210 at 14). Philip Morris points to
several lines from Plaintiff's closing argument during
the first phase of trial, which Philip Morris claims inflamed
the passions and prejudice of the jury. (Id. at
15-16) (citing Trial Tr. at 2468-71). According to Philip
Morris, the allegedly inflammatory comments infected the
entire trial, not just the punitive damage verdict, such that
a new trial is required on all issues. (Id. at 17).
Philip Morris argues that “[t]he punitive damages award
… should be vacated, or at minimum reduced to no more
than $1 million for three reasons.” (Id. at 6;
see also Id. at 17). First, Philip Morris argues
that the punitive damage award is excessive, in violation of
the Fourteenth Amendment's Due Process Clause, because
“a lesser amount would suffice to serve the State's
legitimate interest in punishment and deterrence.”
(Id. at 6). Philip Morris contends that no
punitive award is necessary, due to Philip Morris's
changed conduct, changed personnel and shareholders, and
broad legal restraints on tobacco companies that will
purportedly prevent repetition of the conduct at issue in the
Engle cases. (Id. at 6-7, 7-10). Philip
Morris also argues that I should consider the cumulative
effect of all punitive damage awards, reasoning that $20
million is excessive because if all 2, 700 Engle
plaintiffs received that much in punitive damages, the total
would exceed $50 billion. (Id. at 10). Second,
Philip Morris argues that “the award here is
inconsistent with the Supreme Court's guidance that
punitive damages should not exceed, and in appropriate cases
may be less than, compensatory damages where the jury has
returned a substantial compensatory damages award.”
(Id. at 7; id. at 11-13). Third, Philip
Morris argues that “there is an impermissible risk that
the punitive award in this case reflects punishment for harm
to persons other than Plaintiff.” (Id. at 7;
see also Id. at 13).
may grant a new trial “for any reason for which a new
trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1)(A).
A losing party may ... move for a new trial under Rule 59 on
the grounds that “the verdict is against the weight of
the evidence, that the damages are excessive, or that, for
other reasons, the trial was not fair ... and may raise
questions of law arising out of alleged substantial errors in
admission or rejection of evidence or instructions to the
McGinnis v. Am. Home Mortg. Servicing, Inc., 817
F.3d 1241, 1254 (11th Cir. 2016) (quoting Montgomery Ward
& Co. v. Duncan, 311 U.S. 243, 251 (1940)). Thus,
under Rule 59(a), a district court may grant a new trial
“if in [the court's] opinion, the verdict is
against the clear weight of the evidence ... or will result
in a miscarriage of justice, even though there may be
substantial evidence which would prevent the direction of a
verdict.” Id. (quoting Hewitt v. B.F.
Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984)). A
district court's decision whether to grant or deny a
motion for a new trial is reviewed for abuse of discretion.
Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d
1241, 1247 (11th Cir. 2001). However, a district court's
decision whether the award of punitive damages violates due
process is reviewed de novo. Goldsmith v. Bagby
Elevator Co., Inc., 513 F.3d 1261, 1275-76 (11th Cir.
2008) (citing Cooper Indus., Inc. v. Leatherman Tool
Grp., Inc., 532 U.S. 424, 443 (2001)).
This Court Will Not Grant a New Trial
Morris argues that a new trial on all issues is required
because Plaintiff's closing statements in the first phase
of the trial inflamed the jury's passions. (Doc. 210 at
14-17). Specifically, Philip Morris argues that
Plaintiff's closing remarks invited the jury to award
punitive damages based on harm or misconduct involving
nonparties. The statements include the following:
- And the truth of the matter is that this conspiracy, this
product has killed grandfathers, grandmothers …. they
have killed aunts and uncles, mommies and daddies, they have
killed sisters and brothers. And when - you make no mistake,
and we have shown you the evidence that the replacement
smokers are kids.
(Trial Tr. at 2470-71).
- Dr. Proctor told you the 2014 Surgeon General's report
says that 480, 000 people die every year of cigarette
(Id. at 2469).
- Mr. Jupe agreed when he came on video that [smoking] kills
400, 000 people every year; that's what Mr. Jupe said.
That's 400, 000 people, 480, 000 people, it's about
40, 000 every month. The population of Fort Myers[, Florida]
is 60, 000, that wipes out Fort Myers in less than two
(Id. at 2470).
- The other thing I want you to consider is the targeting to
children. Dr. Proctor - it rhymes - Dr. Proctor, said what
they did from the 20's and on even he said about
targeting children because what did they know? 90 percent,
over 90 percent of daily smokers start in their teenage
years. They're studying 14-year olds and younger.
We showed you some documents with 12-year olds they're
studying. They're doing surveys, where did they go, is
this what in this society we expect companies to do when
they're selling a dangerous product? Let's go find
children at schools, soda fountains, recreation areas, parks,
bowling alleys, beaches, lakes, and then the document tells
you why, why is that a good place? Why? Because their parents
won't be there. Is that the kind of conduct that we need
to deter? Is that the kind of conduct that we need to stop?
(Id. at 2468-69). Additionally, Philip Morris takes
exception to a remark in which Plaintiff's counsel
allegedly compared the company to a child predator:
You know, when a kid - if a kid takes a piece of candy from a
stranger and then goes and gets hurt, you know, because mommy
and daddy told them don't ever accept candy from a
stranger, and then it happens and they go get hurt ….
The kid accepts candy from a stranger and then gets hurt.
Okay? We don't blame that kid because they didn't
listen to mommy and daddy; we blame the party that deserves
(Id. at 2540, 2541). Philip Morris contends that
Plaintiff's arguments excited the jury's passions,
and that the excessiveness of the punitive damages verdict
itself is evidence that the jury was prejudiced. Philip
Morris argues that the appropriate remedy is a new trial on
all issues, including class membership, causation, reliance,
comparative fault, and compensatory and punitive damages.
(Doc. 210 at 16-17).
extent Philip Morris asserts that Plaintiff's closing
arguments require a new trial on all issues, that argument is
barred under the mandate rule. “The mandate rule is a
specific application of the ‘law of the case'
doctrine which provides that subsequent courts are bound by
any findings of fact or conclusions of law made by the court
of appeals in a prior appeal of the same case.”
Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 881 F.3d
835, 843 (11th Cir. 2018) (quotation marks omitted).
“The law of the case doctrine and the mandate rule ban
courts from revisiting matters decided expressly or by
necessary implication....” Id. (quotation
marks omitted). It has its greatest force when a case is on
remand to the district court. Id. When a district
court acts under the mandate of an appellate court, the
district court “cannot vary it, or examine it for any
other purpose than execution; or give any other or further
relief; or review it, even for apparent error, upon a matter
decided on appeal; or intermeddle with it, further than to
settle so much as has been remanded.” Id.
(quotation marks omitted).
prior appeal, the Eleventh Circuit affirmed this Court's
denial of Philip Morris's previous motion for a new trial
based on improper closing arguments. Cote, 909 F.3d
at 1104-05, 1109. The Eleventh Circuit considered and
rejected Philip Morris's claim that Plaintiff's
counsel made remarks during closing or rebuttal argument that
were so prejudicial as to require a new trial. Id.
at 1104-05. Indeed, one of the arguments to which Philip
Morris now objects - where Plaintiff's counsel allegedly
compared the company to a child predator - is identical to
one that the Eleventh Circuit analyzed and found not to be
unwarranted. Id. While the rest of the remarks that
Philip Morris now objects to were not raised on
direct appeal, such as counsel's comment that
smoking-related diseases kill 480, 000 people per year, a
party cannot bypass the mandate rule by raising new arguments
for the first time after remand. See United States v.
Mesa, 247 F.3d 1165, 1170-71 (11th Cir. 2001) (affirming
a district court's refusal to consider a defendant's
new argument raised for the first time at resentencing
following remand). If Philip Morris wished to argue that
Plaintiff's mention of the number of smoking-related
fatalities was so prejudicial as to warrant a new trial, it
should have included that argument in its initial round of
post-trial motions and raised it on appeal. Accordingly, to
the extent Philip Morris argues that Plaintiff's closing
arguments require a new trial on all issues, that argument is
foreclosed by the Eleventh Circuit's prior
Morris also argues that the excessiveness of the punitive
damage award itself is evidence that Plaintiff's
arguments excited the jury's passions. However, this
argument fails because, as discussed below, the punitive
damages were not excessive.
The Punitive Damage Award is Not
alternative to a new trial, Philip Morris argues that I
should vacate or reduce the punitive damage award because it
is excessive. “Punitive damages may properly be imposed
to further a State's legitimate interests in punishing
unlawful conduct and deterring its repetition.” BMW
of N. Am. v. Gore, 517 U.S. 559, 568 (1996) (citations
omitted). However, “[t]he Due Process Clause of the
Fourteenth Amendment prohibits a State from imposing a
grossly excessive punishment on a tortfeasor.”
Id. at 562 (internal quotation marks and citation
omitted). “Only when an award can fairly be categorized
as ‘grossly excessive' in relation to [the
State's] interests does it enter the zone of
arbitrariness that violates the Due Process Clause of the
Fourteenth Amendment.” Id. at 568 (citing
TXO Production Corp. v. Alliance Resources Corp.,
509 U.S. 443, 456 (1993)). A court reviewing a punitive
damage award must consider three “guideposts”:
(1) “the degree of reprehensibility of the
defendant's misconduct”; (2) “the disparity
between the actual or potential harm suffered by the
plaintiff and the punitive damages award”; and (3)
“the difference between the punitive damages awarded by
the jury and the civil penalties authorized or imposed in
comparable cases.” State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 418 (2003). But these
guideposts are not an “analytical straitjacket.”
Action Marine, 481 F.3d at 1318 (quoting
Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70,
81 (1st Cir. 2001)). The “overarching aim [is]
eliminating the risk that a defendant is punished arbitrarily
or without fair notice of the possible consequences of its
first guidepost - reprehensibility - is the “most
important indicium of the reasonableness of a punitive
damages award.” State Farm, 538 U.S. at 419
(quoting Gore, 517 U.S. at 575). See also
McGinnis v. Am. Home Mortgage Servicing, Inc., 901 F.3d
1282, 1288 (11th Cir. 2018) (“The reprehensibility of
the defendant's conduct is the ‘dominant
consideration' in assessing whether a jury's punitive
damages award is excessive.”) (citing
Goldsmith, 513 F.3d at 1283). “The
reprehensibility determination ‘must begin with the
identification of the state's interest and an assessment
of the strength of that ...