Philip Morris USA, Inc. v. Tullo
121 So. 3d 595
| Fla. Dist. Ct. App. | 2013Background
- Mary Tullo (surviving spouse) sued Philip Morris USA, Lorillard, Liggett (collectively "Tobacco Companies") and R.J. Reynolds for her husband Dominick Tullo’s smoking-related death; case proceeded as an Engle-progeny action.
- Parties stipulated that lung cancer caused Mr. Tullo’s death and that smoking caused the lung cancer; plaintiff conceded some of decedent’s fault for continuing to smoke.
- Trial bifurcated per Engle procedure: Phase 1—Engle class membership (addiction), legal causation, liability, comparative fault, and compensatory damages; Phase 2 would address punitive damages if gross negligence found.
- Jury found Tullo was an Engle-class member and returned verdicts for PM, Lorillard, and Liggett on strict liability, negligence, and breach of implied warranty; RJR was found not liable. Fault allocation: Tullo 45%, PM 45%, Lorillard 5%, Liggett 5%; damages reduced for comparative fault.
- Defendants appealed three trial rulings: (1) giving a concurring-cause instruction on class membership; (2) denying new trial based on allegedly improper closing comments by plaintiff’s counsel; and (3) application of Engle findings (Liggett argued it was not bound). Court affirmed on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether concurring-cause instruction on Engle class membership was improper | Instruction was proper to allow jury to find addiction could be a legal cause even if combined with other causes | Concurring-cause instruction was improper because the only other possible cause was Tullo’s own negligence, and a plaintiff’s negligence cannot justify that instruction | Affirmed: trial court did not abuse discretion; giving the instruction was not reversible error |
| Whether counsel’s closing comments (criminal/ heroin comparisons; urging to "hold them to responsibility") warranted a new trial | Comments were permissible argument applying evidence about nicotine’s addictiveness and defendants’ conduct | Comments were improper, inflammatory, and deprived defendants of fair trial; prejudicial | Affirmed: comments were improper but not preserved by contemporaneous objection and were harmless in context of lengthy trial; no fundamental error established |
| Whether Engle findings were correctly applied to defendants (including Liggett) | Plaintiff argued Engle findings bind the defendants as applied by prior precedent | Liggett contended it was not bound by Engle findings | Affirmed: Engle findings applied to defendants consistent with precedent (Brown; Philip Morris USA v. Douglas) |
| Whether verdict against R.J. Reynolds was contrary to weight of evidence (plaintiff cross-appeal) | Tullo argued the no-liability verdict as to RJR was against manifest weight | RJR argued evidence did not establish its liability | Affirmed: appellate court upheld jury’s no-liability verdict as to RJR |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (class action findings that control issues in progeny trials)
- Goldschmidt v. Holman, 571 So.2d 422 (Fla. 1990) (standard of review for jury instructions; prejudicial error test)
- Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000) (limits on closing argument; standard for fundamental error from unpreserved improper argument)
- Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla. 2013) (application of Engle findings in progeny cases)
- R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011) (procedures for bifurcated Engle-progeny trials)
- Zigman v. Cline, 664 So.2d 968 (Fla. 4th DCA 1995) (concurrent causation may include temporally preceding conditions)
- Hart v. Stern, 824 So.2d 927 (Fla. 5th DCA 2002) (concurrent causation instruction when negligence operates with another cause)
- La Petite Acad. v. Kamerzel, 751 So.2d 641 (Fla. 5th DCA 1999) (plaintiff’s own negligence as sole concurring cause may be covered by comparative-fault instruction)
- Robinson v. Gerard, 611 So.2d 605 (Fla. 1st DCA 1993) (no error in refusing redundant instructions covered by other instructions)
- Intramed, Inc. v. Guider, 93 So.3d 503 (Fla. 4th DCA 2012) (improper, inflammatory closing arguments can warrant relief when prejudicial)
- Williams v. Lowe’s Home Ctrs., Inc., 973 So.2d 1180 (Fla. 5th DCA 2008) (pretrial rulings preliminary do not preserve evidentiary issues without contemporaneous objection)