On Remand from the Florida Supreme Court
The portion of our previous decision rendered June 12, 2013, with regards to the defense of the statute of repose, having been quashed by the Florida Supreme Court by an order entered March 15, 2016, we withdraw our previous opinion and substitute the following in its place.
This is an Engle
Factual Background
The Plaintiff brought suit against the Tobacco Companies for the wrongful death of her mother, Margot Putney. In her sеcond amended complaint, the Plaintiff alleged Margot’s death was the result of small-cell carcinoma of the lung and alleged claims of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. The Plaintiff sought recоvery for the estate and for loss of consortium for herself and her two adult siblings. The Plaintiff also sought punitive damagés.
The jury returned a verdict finding for the Plaintiff on negligence, strict liability, and conspiracy to commit fraud by concealment. The jury found for the Tobacco Companies on the fraud by concealment claim. The jury found Philip Morris 15% responsible for. Margot’s death, R,J. Reynolds 30% responsible, Liggett 20% responsible, and Margot herself 35% responsible. The jury awarded Margot’s estate $86,688.96 for medical and funeral expenses and five million dollars to each оf Margot’s three surviving children for loss of consortium. Further,’ the jury found punitive damages were warranted against Philip Morris and R.J. Reynolds, but not Liggett, on the conspiracy claim, and assessed $2.5 million against each of-them.
Post-trial, the trial court denied the Tobacco Companies’ motion for a judgment in them favor on the conspiracy count. The trial court also denied their motion for remittitur on the consortium award by the jury.
Conspiracy Award Despite No Liability for Fraudulent Concealment
The Tobacco Companies argue that the trial court erred in denying their post-trial motion for judgment on the conspiracy to commit fraudulent concealment claim because the Plaintiff presented insufficient evidence to support the claim. More particularly, the Tobacco Companies argue that because the jury found for them on the fraudulent concealment claim, the conspiracy to commit fraudulent concealment claim must also fail. The Tobacco Companies rely on Wright v. Yurko,
“The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” Id. (quoting Liappas v. Augoustis,
Three Engle findings relevant to this case are entitled to res judicata effect:
(ii) “that nicotine in cigarettes is addictive;” ... (iv) “that the [Engle ] defendants concealed or omitted materia! information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;” (v) “that the [En-gle] defеndants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment!)]”
Philip Morris USA, Inc. v. Douglas,
Regarding the contention thаt the Plaintiff failed to prove that Margot relied upon any statements made by any of the co-conspirators, the Plaintiff points out that the jury verdict included the following two questions:
3. Please state as to each defendant whether Margot Putney reasonablyrelied to her detriment on a statement by that defendant which conсealed or omitted material information and, if so, whether such reliance was a legal cause of her death.
4. Please state as to each defendant whether Margot Putney reasonably relied to her detriment on a statement made in furtherance of that defendant’s agreement to conceal or omit material information and, if so, whether such reliance was a legal cause of her death
(emphases added). The Plaintiff then argues that R.J. Reynolds Tobacco Company v. Martin,
Remittitur on Consortium Damages
The Tobacco Companies argue that the trial court abused its discretion in not granting their motion for remittitur on the five million dollar awards to each of the thrеe surviving children for loss of consortium. They contend the awards are excessive compared to those in similar cases and were improperly motivated by passion and prejudice.
A trial court’s ruling on a motion for remittitur is reviewed for abuse of discretion. City of Hollywood v. Hogan,
“Under Florida law an award of non-eсonomic damages must ‘bear a reasonable relation to the philosophy and general trend of prior decisions in such cases.’ ” Bravo v. United States,
Of the thirty-five Engle cases we examined in which thе jury awarded compensatory damages, the juries awarded compensatory damages as great as $7 million in only eight cases. Of these eight cases, three were cases in which the plaintiff was the cigarette smoker and the verdicts included economic damage awards. In the others, the decedents died at a much younger age than Mr. Horner did, or were survived by a spouse, by spouse and child, or by two or more children. Our research has failed to uncover a single case in which an adult child received a wrongful deathaward of this mаgnitude that was affirmed on appeal (either in Engle progeny cases or other wrongful death actions).
Id. at 387-38 (footnotes omitted).
As noted by the Tobacco Companies, all of Margot’s children were adults at the time of her diagnosis and death, and none of them testified that they lived with her or relied on her for support. Appellate decisions that have upheld large consortium awards in tobacco cases involve much closer relationships between the parties and the decedents during the decedent’s illness. For example, in R.J. Reynolds Tobacco Co. v. Townsend,
The Plaintiff argues that the loss of consortium awards were supported by the evidence presented at trial. One of Mar-got’s sons testified how he visited his mother as often as he could once he heard of her lung cancer diagnosis, but it was difficult to do because he had his own family. He further testified that his mother never forgot birthdays and she gave all three of her children a goodbye letter on her last birthday. Another of Margot’s sons testified that his mother’s diagnosis had an emotional impact on him, and he would visit or call every day. Not surprisingly, he misses his mother most on special occasions, such as holidays and birthdays. The Plaintiff, Margot’s daughter, testified that when she learned of her mother’s diagnosis, she was too emotional to talk about it. She accompanied her mother to chеmotherapy treatments, which “killed” her on the inside, because it made her think about losing her mother. The Plaintiff also told the jury how her mother was so ill on the Plaintiffs birthday that her mother could not say “happy birthday,” and she went into a coma soon after, dying nine days later. The Plaintiffs boyfriеnd testified as to how upset the Plaintiff had been since her mother’s death and how it devastated her.
While the above testimony may establish that Margot’s adult children are entitled to a consortium award, we agree with the Tobacco Companies’ argument that the loss of сonsortium awards were excessive compared to those in similar cases and shock the judicial conscience because there was not evidence of the type of close or supportive relationship that would justify such an award. The trial court erred in failing to grant remittitur.
Conclusion
We affirm the trial court’s denial of the Tobacco Companies’ motion to set aside the verdict and for judgment in their favor on the conspiracy claim. We hold that the trial court erred in failing to grant the motion for remittitur as to the loss of consortium аward. Because our previous decision regarding the statute of repose defense has been quashed, we direct the trial court to reinstate the punitive damage awards against Philip Morris USA, Inc. and R.J. Reynolds Tobacco Company. We remand the case for furthеr proceedings consistent with this opinion.
Reversed and remanded for further proceedings.
Notes
. Engle v. Liggett Group,
. Hess v. Philip Morris USA, Inc.,
. We also affirm, without discussion, two issues raised separately by Liggett and by the Plaintiff’s cross-appeal.
. The recognition of an independent tort for conspiracy based on “mere force of numbers” was again discussed by our supreme court in Snipes,