Products Liability Law Reporter

A Florida district court held that a trial court had properly held that Fla. Stat. §768.73(2) barred a plaintiff’s punitive damages claim in an Engle progeny case.

Steffany Sommers, as personal representative of the estate of Bert Sommers, brought an Engle progeny suit against Philip Morris USA Inc., alleging claims for strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal. During pretrial motions, the trial court granted the defense motion for summary judgment on punitive damages, reasoning, in part, that under relevant case law, Engle plaintiffs are not entitled to seek punitive damages on their non-intentional tort claims. The state high court later reversed, ruling that an Engle plaintiff may seek punitive damages on its non-intentional tort claims. The trial court nevertheless denied the plaintiff’s motion for reconsideration and to reinstate the punitive damages claim.

The case proceeded to trial on the issue of compensatory damages, and the jury awarded $1 million. The court entered judgment on the compensatory damages award and ordered a new trial on punitive damages. The appellate court remanded for a trial on punitive damages on both the plaintiff’s intentional and non-intentional tort claims. On remand, the defense moved to apply the current version of §768.73. The trial court granted the defense motion for final summary judgment.

Affirming, the appellate court noted that under §768.73—other than where an exception applies—punitive damages may not be awarded against a defendant in a civil action where the defendant establishes before trial that punitive damages have been awarded previously against the 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. Here, the court said, the trial court concluded that $198 million in punitive damages had previously been awarded against the defendant. Even if this were insufficient to punish the defendant, the court reasoned, the plaintiff here would have to recover greater than $198 million—an amount that could be constitutionally invalid in that it would bear no reasonable relationship to the plaintiff’s $1 million compensatory award. Citing case law, the court added that a ratio of 198 to 1 would be excessive as a matter of law.

Consequently, the court concluded that §768.73 barred the plaintiff’s punitive damages claim.

Citation: Sommers v. Philip Morris USA Inc., 2024 WL 948623 (Fla. Dist. Ct. App. Mar. 6, 2024).

Comment: In Philip Morris USA Inc. v. Lipp, 2024 WL 1289644 (Fla. Dist. Ct. App. Mar. 27, 2024), Norma Lipp smoked approximately one pack of filtered cigarettes per day. She was diagnosed as having lung cancer and died the next year. Her son brought a wrongful death suit against Philip Morris USA Inc., alleging claims for strict liability, negligence, fraudulent concealment, and conspiracy to conceal. After a mistrial, the case was retried in 2021. At trial, both of Lipp’s sons testified about conversations they had with their mother, in which she reportedly expressed her anger at the tobacco companies for the purported lies they told about the safety profile of filtered cigarettes. The jury awarded $43 million, including $28 million in punitive damages. Reversing, the appellate court noted that there are exceptions to the inadmissibility of hearsay, defined as an out-of-court statement offered in evidence to prove the truth of the matter asserted. Where the statement is used to show the declarant’s then-existing state of mind, the court said, it is admissible to prove or explain the declarant’s subsequent conduct. Here, the court found, the statements regarding Lipp’s anger were offered to show that the tobacco companies had lied to her and that she relied on these purported lies. The statements also were offered to bolster the argument that the tobacco companies had lied to Lipp in the past, the court said, concluding that the statements were inadmissible after-the-fact statements. Thus, the court held that admitting the hearsay statements was reversible error, warranting reversal and remand for new trial.