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Cote v. Philip Morris USA, Inc.

United States District Court, M.D. Florida, Jacksonville Division

September 13, 2019

Bernard Cote, as Personal Representative of the Estate of Judith Berger, Plaintiff,
Philip Morris USA, Inc., Defendant.



         This “Engle-progeny”[2] 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.

         I. Background

         The 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.

         The 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.).[3] 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).[4] Thus, the case went to a second phase of trial where the jury decided how much in punitive damages to award.[5] Following this second phase, the jury returned a punitive damages verdict of $20, 760, 000.14. (Doc. 100).

         After 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).

         On 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.

         While 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.

         II. Renewed Motion for New Trial or in the Alternative Remittitur of the Punitive Damages Award[6]

         Philip 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).

         Alternatively, 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).

         A. Standard

         A court 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 jury.”

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)).

         B. This Court Will Not Grant a New Trial

         Philip 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 disease.

(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 months.

(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 the blame.

(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).

         To the 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).

         In the 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 opinion.[7]

         Philip 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.

         C. The Punitive Damage Award is Not Excessive[8]

         As an 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 actions.” Id.

         The 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 ...

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