Products Liability Law Reporter

A Florida appellate court held that a new trial was warranted on punitive damages in an Engle progeny case, but no new trial was necessary on the plaintiff’s negligence or strict liability claims.

After Douglas Duignan’s lung cancer death, his estate brought an Engle progeny wrongful death lawsuit against Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. The jury found for the plaintiff on its claims for negligence, strict liability, fraud by concealment, and conspiracy to commit fraud by concealment, and awarded $6 million in compensatory damages and $6 million in punitive damages. The jury apportioned fault at 67% to the defendants and 33% to Duignan. An intermediate appellate court reversed and remanded for new trial. This led to an award of $2.75 million in compensatory damages and $24 million in punitive damages, and the jury apportioned liability at 70% to the defendant tobacco companies and 30% to Duignan. The defendants appealed, and the appellate court affirmed.

In the interim, the state high court held in Prentice v. R.J. Reynolds Tobacco Co., 338 So. 3d 831 (Fla. 2022), that to prevail on a fraudulent concealment or conspiracy claim, an Engle plaintiff must prove reliance on a statement made by the defendant. The high court then granted review of the intermediate appellate court’s decision and remanded for reconsideration in light of Prentice.

Reversing the final judgment, the intermediate appellate court noted that both the plaintiff and the defendants agree that under the holding in Prentice, an error had occurred on the plaintiff’s fraud claims. The court nevertheless declined to remand for a new trial on the issues of negligence, strict liability, and comparative fault, finding that the fraud claims were independent of and not intertwined with the other causes of action and that comparative negligence was relevant only as to the negligence and strict liability claims. Moreover, the court said that the jury was asked to apportion fault or negligence before deciding the issues of fraud and fraudulent concealment on the general verdict form. The defendant tobacco companies did not object to this or request a special verdict form apportioning the amount of compensatory damages applicable to each claim, the court found.

Turning to the issue of punitive damages, the court determined that because an error had occurred on the fraud claims and it cannot be said that this did not contribute to the jury’s punitive damages finding, a new trial was warranted on the plaintiff’s entitlement to and the amount of punitive damages.

Citation: Philip Morris USA Inc. v. Duignan, 2023 WL 3260144 (Fla. Dist. Ct. App. May 5, 2023).

Comment: See also Coyne v. R.J. Reynolds Tobacco Co., 2023 WL 3698546 (Mass. App. Ct. May 30, 2023). There, Pamela Coyne began smoking cigarettes as a teenager and became addicted. Coyne, who primarily smoked Winston cigarettes, died of lung cancer at age 58. Her husband, individually and on behalf of her estate, sued R.J. Reynolds Tobacco Co., alleging negligent marketing, conspiracy, breach of warranty, and violation of state consumer protection law. Following a trial, the jury awarded approximately $6.3 million in compensatory damages and over $11.2 million in punitive damages. R.J. Reynolds appealed. The appellate court vacated the punitive damages award and remanded for a new trial but otherwise affirmed. The court concluded that the trial court should have granted a directed verdict for the defense on the plaintiff’s negligent marketing claim, finding that there was insufficient evidence supporting the conclusion that R.J. Reynolds’s negligence had caused Coyne to start smoking as a teenager. The existence of an advertising campaign, even if pervasive and successful, does not show why Coyne had begun smoking, the court reasoned, adding that there also was no testimony from Coyne herself as to why she had begun smoking. In light of this, the court vacated the jury’s award of punitive damages, which was based on a finding that the defendant had acted in a manner that was malicious, willful, wanton, or reckless and grossly negligent. Because the jury may have based at least a portion of the punitive damages award on the defendant’s acts in marketing cigarettes to minors, the court found, the punitive damages award must be vacated and remanded for a new trial.