Sommers v. Philip Morris USA, Inc.

Sommers v. Philip Morris USA, Inc.

3d DCA, 3/6/24

No. 3D22-1202, 2024 WL 948623

Chief Judge Logue

Topics: Engle; Punitive Damages

Quick Take: The estate of a deceased smoker suing for wrongful death could not seek punitive damages from a tobacco company. Defendants are entitled to setoff for prior amounts for punitive damages that punish the same conduct in a subsequent case. Though punitive damages were theoretically available for the non-intentional and intentional torts, because the jury only awarded $1 million in compensatory damages and because Philip Morris USA has already paid $198 million in punitive damages for the conduct in Engle cases (deluding non-smokers into thinking smoking was safe), Plaintiff would have to win more than $198 million. And even if a jury awarded that, the ratio of such punitive damages to only $1 million in compensatory damages would make the award unconstitutional.

Full Take: This is an Engle progeny case, meaning that it is a tobacco smoking liability case governed by certain guardrails.

In 2008, Sommers’ estate, with Mrs. Sommers acting as personal representative, sued Philip Morris USA Inc., the tobacco company, as a member of the class of individuals defined by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). The estate alleged claims for strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal. In the alternative, Sommers also brought a survival action alleging Philip Morris caused the decedent to develop coronary artery disease which did not cause his death. The complaint specifically stated that the survival claim would apply only in the event that the company contended that Decedent died of some cause unrelated to smoking cigarettes containing nicotine.

In 2014, Sommers moved to amend her complaint to allege a claim for punitive damages. The trial court entered an order granting the motion and allowing Sommers to seek punitive damages on both her intentional and non-intentional tort claims. Shortly thereafter, the Third DCA followed the First DCA in holding that Engle plaintiffs were not entitled to seek punitive damages on their non-intentional tort claims. Philip Morris moved for reconsideration of the order allowing punitive damages and also moved for summary judgment on the punitive damages claims. The trial court denied the motion so as to let the jury decide the issue and preserve the issue for appeal, but then it granted the motion for summary judgment.

With respect to the intentional tort claims, the trial court ruled that Sommers submitted no evidence that the decedent relied on any statement made by Philip Morris in any way that caused him harm. As to the non-intentional tort claims, the trial court relied on the cases barring punitive damages for non-intentional torts. Plaintiff asked for reconsideration and a stay to await a decision in Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016), and the trial court granted that motion.

Soffer, in 2016, reversed the relevant DCA opinions and held that Engle plaintiffs may seek punitive damages on their non-intentional tort claims. For some reason, however, the trial court still refused to reinstate the punitive damages claims. After jury selection, based on a stipulation by the Defense that a cause of Decedent’s death was cigarette smoking, Sommers expressly abandoned her alternative survival claim, proceeding only on wrongful death claims. The case then proceeded to trial with only compensatory damages at issue.

The jury returned a verdict finding that the decedent was a member of the Engle class because his addiction to cigarettes caused him to develop coronary artery disease before November 1996. The jury found Philip Morris liable for fraud and conspiracy, determining that the decedent relied on false or misleading statements by Philip Morris that legally caused his lung cancer and death. The jury then awarded Sommers $1 million in compensatory damages.

Sommers filed a motion for new trial on entitlement to punitive damages. The trial court granted the motion in part, permitting Sommers to seek punitive damages based only on her non-intentional tort claims. Despite ordering a new trial on punitive damages, the trial court entered a final judgment in Sommers’ favor for the compensatory damages award.

Philip Morris appealed the trial court's final judgment and order granting a new trial. Sommers cross-appealed the trial court's denial of her motion for new trial as it pertained to punitive damages on her intentional tort claims. Philip Morris ultimately did not oppose the cross-appeal. The Third DCA affirmed as to the main appeal and partially reversed as to the cross-appeal, remanding for a trial on punitive damages on both Sommers’ intentional and non-intentional tort claims.

On remand, Philip Morris filed a motion to apply the current version of section 768.73, Florida Statutes. It argued that Sommers’ punitive damages claims were barred because the decedent died after the effective date of the statute, October 1, 1999, and Philip Morris had already paid hundreds of millions in punitive damages for the same course of conduct. In Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114 (Fla. 2021), Supreme Court of Florida decided that the “1999 amendments to section 768.73 app[ied] in Engle progeny wrongful death actions in which the decedent died after the effective date of the amendments.”

Philip Morris then moved to vacate the trial court's prior order denying their motion to apply the current version of section 768.73 and for summary judgment on Sommers’ punitive damages claims. The trial court granted Philip Morris’ motion for final summary judgment, and Sommers appealed.

Sommers did not dispute the trial court's conclusion that the current version of section 768.73(2) applied to her wrongful death action. She argues she was entitled to an evidentiary hearing to determine whether Philip Morris had been sufficiently punished pursuant to section 768.73(2)(b) and contends that the trial court erred by determining that such a hearing or trial on punitive damages would be futile.

Sommers alternatively argues that even if section 768.73(2) barred her from recovering punitive damages on her wrongful death claim, she was still entitled to pursue punitive damages based on her survival claim relating to the decedent's coronary artery disease.

The DCA held that the trial court properly concluded Sommers abandoned her survival claim and therefore could not recover punitive damages based on the injury underlying that claim. Sommers claims she only abandoned that claim because she could no longer seek punitive damages at trial, so she “judged the wrongful death claim to be more valuable than the survival claim” and chose to try only the wrongful death claim. But in the complaint, the survival claim could only be triggered if Philip Morris disputed that the decedent died from smoking cigarettes. Philip Morris expressly stipulated to causation.

Second, the trial court properly concluded that section 768.73(2) barred Sommers’ punitive damage claim. The statute expressly provides that punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purposes of a civil action, the term “the same act or single course of conduct” includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product. A successive claim for punitive damages can only survive if the trial court expressly finds that the prior punitive damages awarded was insufficient to punish that defendant's behavior. The court could also consider whether the defendant's act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.

The same course of conduct is the basis for all Engle-progeny cases that assert the same causes of action for strict liability, negligence, fraudulent concealment, and civil conspiracy. Philip Morris has paid approximately $198 million in punitive damages in Engle progeny cases to date. Thus, it was proper for the trial court to conclude that Sommers’ punitive damages claim was barred by section 768.73(2)(a) unless Sommers could establish that the exception under section 768.73(2)(b) applied.

The only way Sommers could win any punitive damages even if the judge found that the prior amounts did not appropriately punish Philip Morris would be if she won more than $198 million. As she had won only $1 million in compensatory damages, however, no award for punitives in excess of $198 million could be awarded because a punitive damages award must bear a reasonable relationship to the compensatory damages awarded. A ratio in excess of 198 to 1 would be excessive as a matter of law and would violate Philip Morris’ due process rights. Although there is no bright-line standard, the Florida Supreme Court observed in Engle that single-digit ratios are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution. The reasoning in Engle accords with the United States Supreme Court's statement that in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process. AFFIRMED.

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