Cohen v. Philip Morris USA, Inc.

203 So. 3d 942, 2016 Fla. App. LEXIS 13475
CourtDistrict Court of Appeal of Florida
DecidedSeptember 7, 2016
DocketNo. 4D13-2681
StatusPublished
Cited by11 cases

This text of 203 So. 3d 942 (Cohen v. Philip Morris USA, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Philip Morris USA, Inc., 203 So. 3d 942, 2016 Fla. App. LEXIS 13475 (Fla. Ct. App. 2016).

Opinion

CIKLIN, C.J.

David Cohen (“the plaintiff’) appeals the final judgment entered in favor of one of the defendants, Philip Morris USA, Inc. (“Philip Morris”), and the order granting the remaining defendants a new trial. He argues that the trial court erred in finding that he did not put forward sufficient evidence of causation as to Philip Morris, and that the trial court erred in finding a new trial was warranted based on closing argument of plaintiffs counsel. Philip Morris, R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, Liggett Group, LLC, and Vector Group, Ltd., Inc. (“the defendants”) cross-appeal the denial of their motion for judgment as a matter of’ law based on the statute of limitations, and [945]*945argue that application of the Engle1 Phase I findings violates federal due process. We affirm on all issues except one — namely, the trial court’s grant of a directed verdict in favor of Philip Morris based on the lack of evidence pertaining to causation.

Factual Background

The plaintiff brought this Engle progeny action on behalf of the estate of his wife, Helen Cohen (“Helen”), pleading counts for negligence, strict liability, fraud by concealment, and conspiracy to commit fraud by concealment, among other causes of action not relevant on appeal.

Prior to trial, the defendants (excepting Liggett Group, LLC), moved “to preclude argument or comment disparaging them for defending themselves in litigation, or referring to defendants’ supposed failure to ‘take responsibility’ or ‘apologize’ to plaintiff.” The trial court denied the motion without prejudice to renew through proper trial objections. The defendants also moved in limine to prohibit arguments that the jury may disregard any references to the statute of limitations. The trial court granted the motion.

At the close of the plaintiffs ease at trial, Philip Morris moved for a directed verdict, arguing that the plaintiff failed to introduce evidence that would establish that Helen’s use of Philip Morris cigarettes was a legal cause of her chronic obstructive pulmonary disease (“COPD”) and lung cancer. Philip Morris acknowledged that there was evidence Helen smoked its cigarettes for “three years and a couple of months, or some undefined ‘significant’ amount of time,” and for 6.3B pack years2 in the early 1950s, but it argued that this was not sufficient evidence of the actual amount of time she smoked its cigarettes. Philip Morris also argued that the expert testimony did not establish that its cigarettes were a “but for” or “substantial” cause of disease and death, as “Dr. Wright did not testify that if Mrs. Cohen had not smoked PM USA’s cigarettes, her ‘injury would not have occurred.’ ” The trial court granted the motion.

At trial, during the charge conference, defense counsel requested that “any reference [to] COPD” should be “COPD/emphy-sema,” and plaintiffs counsel, did not object. Interrogatory #2 pertained to the defendants’ statute of limitations defense, in which they asserted that Helen was aware or should have been aware of her disease, and its connection to her smoking of cigarettes, on or before May 5, 1990. Interrogatory #2 on the verdict form reads as follows:

Did Mrs. Cohen know, or should she have known in the exercise of reasonable care, on or before May 5, 1990, that she had COPD/Emphysema and that there was a reasonable possibility that the COPD/Emphysema was caused by cigarette smoking?

During closing argument, plaintiffs counsel made the following statements regarding the defendants’ failure to take responsibility:

It is the use of the disclosures in these documents and the attention we paid to them that show the root cause of this [946]*946crisis, the tobacco epidemic in this country. And that’s the first step towards accountability. I challenge the defense attorneys in any way, shape, or form during—
[[Image here]]
We will see if for any reason under any set of circumstances any acknowledgement of responsibility—
[[Image here]]
There’s a dozen things tobacco has never admitted to this day in this courtroom.
[[Image here]]
The evidence in this case from Dr. Proctor is that big tobacco has never admitted that cigarettes are the leading cause of death in the U.S. and worldwide.
[[Image here]]
Big Tobacco has never admitted it.
[[Image here]]
.1 had read to you that the tobacco industry has never admitted that they manipulate the chemistry of the tobacco to create sustained addiction. They’ve never admitted that Alters are fraudulent. They’ve never admitted that low-tar cigarettes are no less deadly than regular cigarettes. They’ve never admitted that the cigarettes smoked today are just as deadly as any cigarettes ever smoked. They never admitted that hundreds of thousands of people have died.... And they’ve never offered any apology for any of the above.

Additionally, while discussing the statute of limitations defense, plaintiffs counsel informed the jury that “COPD, by the way, is not the same kind of thing as emphysema in terms of the word and the use of the word and the understanding of the word.” Counsel also characterized the defense as a “technicality.”

During its deliberations, the jury posed the following question: “To clarify question #2: If we determine Mrs. Cohen knew she had ‘emphysema’ before May 5, 1990, but was not informed of a ‘COPD’ diagnosis, does that alone qualify for a ‘yes’ response?” The trial court read back the portion of the jury instructions instructing the jury that on the defendants’ statute of limitations defense, the defendants had to prove that Helen “knew or ... should have known before May 5,1990 that she had COPD backslash emphyse-mai”

The jury returned a verdict in favor of the defendants on the fraud and conspiracy counts but otherwise in favor of .the plaintiff in the amount of $2,055,050.26. The remaining defendants moved for new trial based on, among myriad grounds, comments made by plaintiffs counsel during closing argument. The trial court granted the motion for new trial, finding that counsel’s statements regarding COPD and emphysema misled the jury to believe there was “some difference between COPD and emphysema for purposes of the statute of limitations when even Plaintiff had agreed and the Court had instructed that there was no difference between the two.” With respect to the “take responsibility” and “apologize” arguments, the court found they were improper, and that they '“permeated” the closing argument, warranting a new trial.

Analysis

A. Improper Closing Argument

The plaintiff contends that the arguments made during closing were proper in that they related to the evidence and claims, particularly to his request for punitive damages. He also argues that the statements distinguishing emphysema from COPD were accurate statements and that any confusion was caused because both terms were used interchangeably by defense counsel and the trial court.

[947]*947The standard of review of an order granting new trial is abuse of discretion. Fla. Power & Light Co. v. Hayes,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
203 So. 3d 942, 2016 Fla. App. LEXIS 13475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-philip-morris-usa-inc-fladistctapp-2016.