211 So. 3d 221
Fla. Dist. Ct. App.2017Background
- Laura Grossman, a long-term heavy smoker, died of lung cancer at age 38; her husband Jan Grossman sued R.J. Reynolds (RJR) under Engle progeny theories (strict liability, fraud by concealment, negligence, breaches of warranty, conspiracy).
- Phase I jury previously found Decedent was a member of the Engle class (addicted to cigarettes); Phase II retrial addressed liability, compensatory damages, and punitive damages eligibility.
- At Phase II retrial the jury found for Plaintiff on design-defect and other counts, awarded $3.5M to the representative, $7.5M to the daughter, $4M to the son, plus medical/funeral expenses, and apportioned fault 75% to RJR / 25% to Decedent; punitive damages of $22.5M were later awarded after Phase III.
- RJR moved for mistrial/new trial (jury selection and closing-argument issues), for remittitur of compensatory and punitive awards, and argued Engle-finding use violated due process; trial court denied those motions and entered judgment exceeding $37M.
- The Fourth DCA affirmed most rulings but held the trial court erred by refusing to reduce compensatory damages to account for the jury’s comparative-fault finding and remanded for reduction proportional to Decedent’s 25% fault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury-selection (court considered cause strikes after RJR used peremptories) | Court may consider cause challenges and need not restart peremptory process | Considering cause strikes after peremptories without restarting was reversible error | Trial court had discretion; refusal to restart peremptory process was not reversible error |
| Closing-argument improprieties (allegedly disparaging RJR) | Comments were acceptable or any error was harmless and not preserved | Comments required new trial under Calloway (preserved objections) | Most improper comments were sustained at trial; RJR failed to timely move for mistrial, so review limited to fundamental-error standard; no fundamental error found |
| Comparative fault reduction of compensatory damages | Damages should not be reduced because jury found an intentional tort by RJR | Compensatory damages must be reduced by Decedent’s comparative fault (25%) | Court erred in refusing to reduce compensatory damages; remand to reduce award proportionally to comparative fault |
| Remittitur of compensatory (children) and punitive damages | Awards are excessive compared to comparable Engle cases and require remittitur | Awards fit within reasonable range given children were minors and punitive ratio is within precedents | Denial of remittitur affirmed: children’s awards supported by evidence of dependency and severe harm; punitive award not unconstitutionally excessive |
| Use of Engle Phase I findings / due process challenge | Use of Engle findings violates RJR’s due process | Precedent allows use of Engle findings (Douglas) | Due process challenge rejected under controlling Florida Supreme Court precedent |
Key Cases Cited
- Jackson v. State, 464 So.2d 1181 (Fla. 1985) (peremptory/cause challenge timing principles)
- Lottimer v. N. Broward Hosp. Dist., 889 So.2d 165 (Fla. 4th DCA 2004) (trial court discretion over juror selection procedure)
- Murphy v. Int’l Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000) (standard for unpreserved closing-argument error/fundamental error test)
- Philip Morris USA, Inc. v. Tullo, 121 So.3d 595 (Fla. 4th DCA 2013) (closing-argument preservation rule in tobacco cases)
- R.J. Reynolds Tobacco Co. v. Grossman, 96 So.3d 917 (Fla. 4th DCA 2012) (prior reversal/remand addressing verdict form error)
- R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015) (Engle progeny characterized as products-liability/negligence at core)
- R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753 (Fla. 4th DCA 2016) (closing-argument misconduct in tobacco cases can warrant new trial)
- R.J. Reynolds Tobacco Co. v. Odom, 210 So.3d 696 (Fla. 4th DCA 2016) (deference to jury on noneconomic damages; distinction for adult vs. minor children)
- R.J. Reynolds Tobacco Co. v. Buonomo, 138 So.3d 1049 (Fla. 4th DCA 2013) (punitive/compensatory ratio not unconstitutionally excessive)
- Lorillard Tobacco Co. v. Alexander, 123 So.3d 67 (Fla. 3d DCA 2013) (punitive damages ratio analysis)
- R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010) (punitive award upheld despite high ratio)
- Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla. 2013) (Florida Supreme Court permitting use of Engle Phase I findings)
- Webb v. R.J. Reynolds Tobacco Co., 93 So.3d 331 (Fla. 1st DCA 2012) (adult child wrongful-death awards guidance)
- Putney v. Philip Morris USA Inc., 199 So.3d 465 (Fla. 4th DCA 2016) (limits on multimillion awards to independent adult children)
- Citrus County v. McQuillin, 840 So.2d 343 (Fla. 5th DCA 2003) (upholding multimillion award to young child for loss of parent)