PHILIP MORRIS USA INC. v. ROBERT A. GORE, SR., Individually and as Personal Representative of the ESTATE OF GLORIA H. GORE
20-0932
| Fla. Dist. Ct. App. | Apr 13, 2022Background
- Gore filed an Engle-progeny wrongful-death suit against Philip Morris and R.J. Reynolds; he served two identical Proposals for Settlement (PFS) for $250,000 to each defendant, both rejected.
- A jury returned $2,000,000 in compensatory damages; after appeals and remand the trial court entered judgment for the full jury award.
- Gore moved for fees and costs under Fla. Stat. § 768.79 based on the rejected PFSs; he sought >$5.6M (6,266.38 stipulated hours).
- Reynolds settled Gore’s fee claim separately; Philip Morris sought discovery of that settlement and later sought a setoff against Gore’s fee award.
- The trial court awarded ~$1.96M in attorney’s fees and ~$69.9K in expert costs against Philip Morris, denied Philip Morris’s statutory setoff motion, and entered final judgment with prejudgment interest (~$2.515M).
- The Fourth DCA affirmed most rulings but reversed and remanded the fee award: while statutory setoffs (sections 46.015 and 768.041) do not apply to fee awards, the trial court must reduce PFS-based fees to avoid duplicative recovery of fees already paid by settling co-defendants, using the parties’ stipulated hours.
Issues
| Issue | Plaintiff's Argument (Gore) | Defendant's Argument (Philip Morris) | Held |
|---|---|---|---|
| Do §§ 46.015 & 768.041 require a setoff against a PFS fee award for amounts paid by a settling co-defendant? | Those statutes don’t apply to attorney’s fees; they govern damages only. | Statutory setoff should reduce any recovery to prevent double recovery. | Statutes apply only to “damages”; they do not authorize setoff of attorney’s fees awarded under a PFS. |
| Must a court consider fees/costs already paid by settling co-defendants when awarding "reasonable" fees under § 768.79? | PFS fees are a sanction/deterrent and need not be reduced because of a co-defendant’s payment. | Denying reduction causes an unreasonable windfall; reasonableness requires considering prior payments. | Court must consider fees/costs previously paid by settling defendants and reduce the award as needed to avoid duplicative recovery; reasonableness standard controls. |
| Did the trial court abuse discretion by reducing hourly rates based on unrelated case evidence? | Trial court’s rate reductions were unwarranted. | Trial court may use judicial experience and comparable authorities to set reasonable rates. | No abuse: the court may apply its experience and comparable evidence to set reasonable rates. |
| Did the trial court err by disregarding the parties’ stipulation as to attorney Kaney’s hours? | Stipulated hours are binding and should not be disturbed without compelling reason. | (Philip Morris had earlier stipulated to total hours but challenged allocation/values) | Error: trial court should have used the parties’ stipulated attorney-hours when adjusting the fee award. |
Key Cases Cited
- Geier v. Sundquist, 372 F.3d 784 (6th Cir. 2004) (reasonableness is the primary concern in fee awards)
- Corder v. Brown, 25 F.3d 833 (9th Cir. 1994) (settling defendant’s payments can offset fee awards to avoid double recovery)
- Bravo v. City of Santa Maria, 810 F.3d 659 (9th Cir. 2016) (district court must offset fees by settling defendant’s payment when appropriate)
- Cornerstone SMR, Inc. v. Bank of Am., N.A., 163 So. 3d 565 (Fla. 4th DCA 2015) (setoff statutes prevent duplicate compensation from joint tortfeasors)
- Gordon v. Marvin M. Rosenberg, D.D.S., P.A., 654 So. 2d 643 (Fla. 4th DCA 1995) (setoff provision prevents overlapping compensation for identical damages)
- MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995 So. 2d 221 (Fla. 2008) (compensatory damages must match injury; courts avoid windfalls)
- Vargas v. Hudson Cnty. Bd. of Elecs., 949 F.2d 665 (3d Cir. 1991) (trial court may apportion fee awards among defendants based on respective roles)
- Corder v. Gates, 947 F.2d 374 (9th Cir. 1991) (time spent pursuing each defendant is relevant to apportionment)
- Cassedy v. Wood, 263 So. 3d 300 (Fla. 1st DCA 2019) (fees under contract and § 768.79 may be awarded together where apportionment shows no double recovery)
- El Brazo Fuerte Bakery 2 v. 24 Hour Air Service, Inc., 330 So. 3d 552 (Fla. 4th DCA 2021) (trial court must make specific findings when reducing requested hours or rates)