Cohen v. Philip Morris USA, Inc.
203 So. 3d 942
| Fla. Dist. Ct. App. | 2016Background
- Plaintiff (David Cohen) sued on behalf of his wife’s estate (Helen Cohen) in an Engle-progeny tobacco action alleging negligence, strict liability, fraud by concealment, and conspiracy, among other claims.
- Trial returned a verdict for plaintiff (about $2.055M) on liability/damages but found defendants not liable on fraud/conspiracy counts.
- During closing, plaintiff’s counsel repeatedly argued that tobacco companies never “took responsibility” or “apologized,” and distinguished COPD from emphysema while attacking the defendants’ statute-of-limitations defense.
- Trial court granted a new trial for the remaining defendants, finding the closing arguments improperly disparaged defendants for defending the case and misled the jury about COPD/emphysema, and granted Philip Morris a directed verdict on causation for lack of evidence tying Philip Morris cigarettes to Helen’s COPD/lung cancer.
- On appeal, plaintiff challenged the directed verdict for Philip Morris and the new-trial order; defendants cross-appealed denial of JMOL on statute of limitations and argued Engle Phase I application violates due process.
- The appellate court affirmed the new-trial order (improper closing and statute-of-limitations confusion), reversed the directed verdict for Philip Morris (insufficient basis), and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were closing remarks improper and warrant a new trial? | Closing was permissible, tied to evidence and punitive damages; COPD/emphysema distinction accurate. | Comments improperly disparaged defendants for defending the case and misstated evidence about COPD vs emphysema. | Court: Comments improperly urged defendants to "take responsibility" and misled jury on COPD/emphysema; new trial affirmed. |
| Was directed verdict for Philip Morris on causation appropriate? | Plaintiff argued sufficient evidence of addiction/use and expert testimony supported that Philip Morris cigarettes more likely than not contributed to disease. | Philip Morris argued plaintiff failed to prove its cigarettes were a legal cause; experts did not say Helen would not have developed disease but for PM. | Court: Reversed directed verdict — plaintiff need not prove PM was sole cause or >50% cause; evidence could support causation finding. |
| Should defendants have judgment as a matter of law on statute of limitations? | Plaintiff argued statute-of-limitations defense was properly rejected by jury based on instructions and evidence. | Defendants argued Helen knew or should have known by May 5, 1990 and sought JMOL. | Court: Denial of defendants’ JMOL affirmed; no reversal. |
| Does application of Engle Phase I findings violate due process? | Plaintiff relied on Engle findings to support liability elements. | Defendants contended using Engle Phase I findings against them violates federal due process. | Court: Cross-appeal arguments lacked merit; not addressed in detail and rejected. |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (foundational class-phase findings in tobacco litigation)
- Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984) (standard for causation — "more likely than not"/substantial factor)
- Philip Morris USA, Inc. v. Tullo, 121 So.3d 595 (Fla. 4th DCA 2013) (closing-argument limits; improper "take responsibility" comments)
- Allstate Ins. Co. v. Marotta, 125 So.3d 956 (Fla. 4th DCA 2013) (reversal for new trial where counsel’s repeated improper "accept responsibility" arguments were prejudicial)
- Whitney v. R.J. Reynolds Tobacco Co., 157 So.3d 309 (Fla. 1st DCA 2014) (causation in tobacco cases — plaintiff need not show defendant was sole cause or doubled risk)
- Cox v. St. Josephs Hosp., 71 So.3d 795 (Fla. 2011) (directed verdict improper where evidence could support "more likely than not" causation)