Philip Morris USA Inc. v. Putney

117 So. 3d 798, 2013 WL 2494172
CourtDistrict Court of Appeal of Florida
DecidedJune 12, 2013
DocketNos. 4D10-3606, 4D10-5244
StatusPublished
Cited by4 cases

This text of 117 So. 3d 798 (Philip Morris USA Inc. v. Putney) 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
Philip Morris USA Inc. v. Putney, 117 So. 3d 798, 2013 WL 2494172 (Fla. Ct. App. 2013).

Opinion

CONNER, J.

This is an Engle1 progeny case. Philip Morris USA, Inc. and R.J. Reynolds Tobacco Company, together with Liggett Group LLC (collectively “the Tobacco Companies”), appeal the trial court’s entry of an amended final judgment in favor of Sharon Putney, as personal representative of the estate of Margot Putney (“the Plaintiff’). The Tobacco Companies raise four grounds for reversing the final judgment. We affirm, without discussion, the Tobacco Companies’ claim that the trial court abused its discretion in denying a cause challenge to a juror. Regarding the verdict holding the Tobacco Companies liable for conspiracy, we hold the trial court properly denied the post-trial motion for judgment in their favor. We also hold the trial court erred in denying a motion for remittitur of compensatory damages for loss of consortium, as the compensatory damage award was excessive compared to similarly situated cases. Lastly, we hold the trial court erred in entering summary judgment on the Tobacco Companies’ affirmative defense regarding the statute of repose.2

Factual Background

The Plaintiff brought suit against the Tobacco Companies for the wrongful death of her mother, Margot Putney. In her second amended complaint, the Plaintiff alleged Margot’s death was the result of small cell carcinoma of the lung and alleged claims of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. The Plaintiff sought recovery for the estate and for loss of consortium for herself and her two adult siblings. The Plaintiff also sought punitive damages.

Prior to trial, the trial court granted the Plaintiffs motion for summary judgment and determined that all of the Tobacco Companies’ affirmative defenses, including the statute of repose, were not viable based on the preclusive Engle findings.

The jury returned a verdict finding for the Plaintiff on negligence, strict liability, and conspiracy to commit fraud by concealment. The jury found for the Tobacco Companies on the fraud by concealment claim. The jury found R.J. Reynolds 30% responsible for Margot’s death, Philip Morris 15% responsible, Liggett 20% responsible, and Margot herself 35% responsible. The jury awarded Margot’s estate $86,688.96 for medical and funeral expenses and five million dollars to each of Margot’s three surviving children for loss of consortium. Further, the jury found punitive damages were warranted against R.J. Reynolds and Philip Morris, but not Liggett, on the conspiracy claim and assessed $2.5 million against each of them.

Post-trial, the trial court denied the Tobacco Companies’ motion for a judgment in their favor on the conspiracy count. The trial court also denied their motion for remittitur on the consortium award by the jury.

Conspiracy Award Despite No Liability for Fraudulent Concealment

The Tobacco Companies argue that the trial court erred in denying their post-trial motion for judgment on the conspiracy to commit fraudulent concealment claim because the Plaintiff presented insufficient evidence to support the claim. More par[801]*801ticularly, the Tobacco Companies argue that because the jury found for them on the fraudulent concealment claim, the conspiracy to commit fraudulent concealment claim must also fall. Quoting Wright v. Yurko, 446 So.2d 1162, 1165 (Fla. 5th DCA 1984), the Tobacco Companies argue, “[a]n actionable conspiracy requires an actionable underlying tort or wrong.” They further argue, referencing our words from Palm Beach County Health Care District v. Professional Medical Education Inc., 13 So.3d 1090, 1096 (Fla. 4th DCA 2009), that when “the counts regarding the goals of the conspiracy ... fail, so too the conspiracy count must fail.” Additionally, the Tobacco Companies argue the Plaintiff failed to prove Margot relied upon any statements made by any of the co-conspirators.

“The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” Id. (citing Liappas v. Augoustis, 47 So.2d 582, 582 (Fla.1950)). However, in Palm Beach County Health Care District, we made reference to an exception to the general rule, citing Liappas and Snipes v. W. Flagler Kennel Club, Inc., 105 So.2d 164, 165 (Fla.1958). 13 So.3d at 1096 n. 3. In Liappas, our supreme court recognized an independent tort of conspiracy “where mere force of numbers acting in unison or other exceptional circumstances may make a wrong.” Liappas, 47 So.2d at 583 (citing DesLauries v. Shea, 300 Mass. 30, 13 N.E.2d 932 (1938)). The court said, “in order to prove an independent tort for conspiracy upon the basis of ‘mere force of numbers acting in unison,’ it must be shown that there was some ‘peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had.’ ” Id. (citation omitted).3

Three Engle findings relevant to this case are entitled to res judicata effect: “(ii) ‘that nicotine in cigarettes is addictive;’ ... (iv) ‘that the [Engle] defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;’ (v) ‘that the [Engle] defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment^]’ ” Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 434 (Fla.2013). In combination, those Engle findings preclusively establish the Tobacco Companies engaged in a conspiracy to conceal or omit information regarding the health effects of cigarettes and their addictive nature with the intention that smokers and the public would rely on the information to their detriment. The Engle findings also establish there were other companies besides the Tobacco Companies involved in this case, including other companies producing tobacco products, who were co-conspirators. Id. Given the number of co-conspirators involving the major players in the tobacco industry, the breadth of the conspiracy, and the addictive nature of cigarettes, we conclude that the conspiracy sued upon in this case is an independent tort of conspiracy “where mere force of numbers acting in unison or other exceptional circumstances may make a wrong.” The unified actions of the conspirators, coupled with the addictive nature of cigarettes, resulted in the [802]*802conspirators exerting a “peculiar power of coercion” over Margot, the decedent.

Regarding the contention that the Plaintiff failed to prove that Margot relied upon any statements made by any of the co-conspirators, the Plaintiff points out that the jury verdict included the following two questions:

3. Please state as to each defendant whether Margot Putney reasonably relied to her detriment on a statement by that defendant which concealed or omitted material information and, if so, whether such reliance was a legal cause of her death.
4.

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

Related

Berger v. Philip Morris USA, Inc.
101 F. Supp. 3d 1228 (M.D. Florida, 2015)
R.J. Reynolds Tobacco Co. v. Smith
131 So. 3d 18 (District Court of Appeal of Florida, 2013)
R.J. Reynolds Tobacco Co. v. Buonomo
128 So. 3d 102 (District Court of Appeal of Florida, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
117 So. 3d 798, 2013 WL 2494172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philip-morris-usa-inc-v-putney-fladistctapp-2013.