Bernard Cote v. Philip Morris USA, Inc.
909 F.3d 1094
| 11th Cir. | 2018Background
- Judith Berger, an admitted member of the Engle class, sued Philip Morris for strict liability, negligence, fraudulent concealment, and conspiracy to fraudulently conceal based on decades-long tobacco industry conduct and her smoking-related COPD.
- The jury (after a bifurcated nine-day trial) found for Berger on all claims, awarded $6.25 million compensatory (reduced to $3.75M for 40% comparative fault) and $20,760,000.14 punitive damages related to intentional torts.
- Philip Morris moved post-trial for JMOL on all claims (arguing federal preemption and due process problems with applying Engle Phase I findings) and for JMOL/new trial on the fraudulent concealment and conspiracy claims (arguing lack of detrimental reliance). It also sought a new trial based on allegedly improper closing arguments.
- The district court denied Philip Morris’s new-trial and broad JMOL motions (rejecting preemption/due process defenses) but granted JMOL for Philip Morris on the intentional tort claims and vacated punitive damages, concluding Berger’s testimony negated detrimental reliance.
- On appeal, the Eleventh Circuit affirmed denial of the new-trial motion (closing-argument rulings) and rejection of preemption/due process arguments, reversed the grant of JMOL on intentional torts, reinstated the jury’s findings on fraudulent concealment and conspiracy, and ordered reinstatement of punitive damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were district-court curative measures adequate to avoid a new trial for opposing counsel’s allegedly inflammatory closing remarks? | Berger: comments were fair response to defense and any improper remarks were cured by instructions. | Philip Morris: closing invoked extreme comparisons, disparaged defense, and injected counsel opinion, warranting new trial. | Court affirmed denial of new trial; remarks were within permissible response and curative instructions sufficed. |
| Does application of Engle Phase I findings in Engle-progeny cases violate due process? | Berger: Phase I findings are binding and may be used to establish elements; this is constitutionally permissible. | Philip Morris: giving preclusive effect to Phase I findings violates due process, especially for disjunctive findings on concealment/addictiveness. | Court rejected Philip Morris (bound by Eleventh Circuit precedent) and affirmed denial of JMOL on this ground. |
| Are state-law nonintentional tort claims based on Phase I findings preempted by federal tobacco regulation? | Berger: no preemption; state tort claims stand. | Philip Morris: federal laws/regulation preempt state tort claims arising from cigarette design/labeling. | Court affirmed that federal tobacco laws do not preempt use of Phase I findings for state tort claims. |
| Was there sufficient evidence of detrimental reliance for fraudulent concealment and conspiracy (so as to sustain punitive damages)? | Berger: pervasive industry disinformation and her testimony about confusion/failed cessation permit a reasonable juror to infer detrimental reliance. | Philip Morris: Berger’s testimony that she started from peer pressure and chose brands for taste negates detrimental reliance. | Court reversed JMOL for Philip Morris on intentional torts; found sufficient evidence for jurors to infer detrimental reliance and reinstated punitive damages. |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (Phase I findings on causation and industry misconduct bind Engle-progeny plaintiffs)
- Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169 (11th Cir. 2017) (en banc) (treating Engle Phase I findings as res judicata does not violate due process; no federal preemption)
- Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068 (11th Cir. 2018) (rejecting due-process challenge to preclusive effect of Phase I concealment findings)
- Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342 (11th Cir. 2018) (confirming Burkhart and binding precedent on preclusive use of Engle findings)
- Philip Morris USA, Inc. v. Duignan, 243 So. 3d 426 (Fla. 2d DCA 2017) (explaining detrimental-reliance inquiry in Engle-progeny concealment claims)
- Hess v. Philip Morris USA, Inc., 175 So. 3d 687 (Fla. 2015) (elements of fraudulent concealment under Florida law)