Berger v. R.J. Reynolds Tobacco Company et al

Filing 171

ORDER denying 160 Plaintiff's Motion for Reconsideration of Order Granting Judgment as a Matter of Law and Request for Oral Argument. The stay previously entered is lifted. The Clerk is directed to enter final judgment consistent with the 4/23/2015 Order 155 . Signed by Judge James G. Carr on 11/18/2015. (BJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

Judith Berger,
Plaintiff,

Case No. 3:09-cv-14157

v.

ORDER

Philip Morris USA, Inc.
Defendant.

Carr, D.J.1
This is an “Engle-progeny”2 suit by Plaintiff Judith Berger (“Mrs. Berger”), a former
smoker of cigarettes, against the manufacturer of those cigarettes, Defendant Philip Morris USA,
Inc. (“PMUSA”). Following trial, the jury returned a compensatory damages verdict of $6.25
million (with a 40% comparative fault finding) and an award of $20,000,760.14 in punitive
damages based upon Mrs. Berger’s fraud and conspiracy claims. (Doc. 92). I subsequently

1

Senior U.S. District Judge, N.D. Ohio, sitting by designation.

2

I refer to the cases filed pursuant to the Florida Supreme Court's opinion in Engle v. Liggett
Group, Inc. (Engle III), 945 So. 2d 1246 (Fla. 2006), as "Engle-progeny cases." There, the Court
decertified a statewide class of smokers and their survivors, but allowed members of the decertified
class one year in which to file individual lawsuits, referred to as "the Engle savings period." Id. at
1277. For a detailed history of the Engle litigation, see Brown v. R.J. Reynolds Tobacco Co., 611
F.3d 1324, 1326-29 (11th Cir. 2010) and Waggoner v. R.J. Reynolds Tobacco Co., 835 F. Supp. 2d
1244 (M.D. Fla. 2011). I presume the reader’s familiarity with the Engle-progeny litigation.
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granted PMUSA’s motion for judgment as a matter of law (Doc. 136), holding that the jury’s
verdict on Mrs. Berger’s fraudulent concealment and conspiracy to fraudulently conceal claims
was not supported by sufficient evidence. (Doc. 155).
Pending is Mrs. Berger’s motion for reconsideration of that Order (Doc. 160), PMUSA’s
response in opposition (Doc. 161), Mrs. Berger’s reply (Doc. 165), and PMUSA’s sur-reply
(Doc. 167). Supplemental authority was also filed. (Docs. 163-64, 169, 170.) For the reasons
that follow, I deny Mrs. Berger’s motion (Doc. 160).
I. Standard
“Reconsideration is ‘an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.’ ” Kearney v. Auto-Owners Ins. Co., No. 8:06cv-00595-T-24-TGW, 2010 WL 3062420, at *3 (M.D. Fla. Aug. 4, 2010) (quoting Int’l Union of
Painters v. Argyros, No. 5-cv-1661, 2007 WL 1577840, at *1 (M.D. Fla. May 31, 2007)). A Rule
59 motion “does not provide an opportunity to simply reargue an issue the Court has once
determined. Court opinions ‘are not intended as mere first drafts, subject to revision and
reconsideration at a litigant’s pleasure.’ ” Am. Ass’n of People With Disabilities v. Hood, 278 F.
Supp. 2d 1337, 1340 (M.D. Fla. 2003) (quoting Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123
F.R.D. 282, 288 (N.D. Ill. 1988)). Moreover, in determining whether reconsideration is warranted,
only three circumstances justify reconsideration: (1) a change in controlling law; (2) the availability
of new evidence; or (3) the need to correct clear error or manifest injustice. See Wi-Lan, Inc. v. HTC
Corp., 951 F. Supp. 2d 1291, 1291 (M.D. Fla. 2013); Argyros, 2007 WL 1577840, at *1.
II. Discussion
Upon review of the subject motion, the parties briefing, and my prior Order, I do not find

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reconsideration to be warranted. Mrs. Berger raises several arguments, but principally contends
that I erred by not applying R.J. Reynolds Tobacco Co. v. Martin (“Martin”) in addressing the
sufficiency of evidence propounded by Mrs. Berger. See 53 So. 3d 1060 (Fla. 1st DCA 2010).
Mrs. Berger also argues that I erred by disregarding Martin as it substantively informs Florida
law, and that more than enough evidence existed at trial for the jury to find reliance.
Mrs. Berger’s motion, however, contorts my analysis of Martin in the subject Order.
Rather than disregard Martin, the discussion of Martin’s application squarely focused on Mrs.
Berger’s application of Martin,3 which appeared to suggest that notwithstanding federal
sufficiency of evidence law, Martin somehow compelled the conclusion that the inferences
supporting the jury’s verdict were automatic or otherwise per se reasonable. See Berger, 2015
WL 1865757 at *8 (“To allow a finding of detrimental reliance to necessarily follow from
nothing more than generic evidence of PM USA’s general conduct would be to deny the very
essence of Engle III and Douglas.”) (emphasis added). As I expressly stated, “I am not
convinced Martin itself intended to stand for the proposition advanced by Mrs. Berger . . . [but]
[r]ather . . . a pledge of allegiance to the power of properly applied, rational, circumstantial
evidence.”4 Id. at *7 n.7.
Indeed, the proposition that Martin allows for reasonable inferences to be drawn from

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This qualification was repeatedly emphasized throughout. See, e.g., Berger v. Philip Morris
USA, Inc., No. 3:09-cv-14157, 2015 WL 1865757, at *7-9 (M.D. Fla. Apr. 23, 2015) (using phrases
like, “as Mrs. Berger contends,” “to the extent proposed by Mrs. Berger,” “I am not convinced
Martin itself intended to stand for the proposition advanced by Mrs. Berger,” and “[a]n adherence
to Martin, if construed as Mrs. Berger submits . . .”).
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The recent opinion of the Florida District Court of Appeal in Evers v. R.J. Reynolds
Tobacco Co., approving of Martin, does not persuade me to alter my analysis. (See Doc. 160-1.)
3

circumstantial evidence is rather unremarkable in light of the federal standard, which, as Mrs.
Berger concedes, is no more or less restrictive. See Daniels v. Twin Oaks Nursing Home, 692
F.2d 1321, 1326 (11th Cir. 1982). I thus agree with PMUSA that the essence of Mrs. Berger’s
objection takes issue not with the sufficiency of evidence standard utilized, which Mrs. Berger
admits is identical under federal and Florida law, but rather with the outcome

that being, my

determination that an inference of reliance is not reasonable in light of Mrs. Berger’s testimony.
I decline to revisit the merits of this determination, as the appropriate forum for its review is on
appeal, not by motion for reconsideration. See Wi-Lan, Inc., 951 F. Supp. 2d at 1291; Argyros,
2007 WL 1577840, at *1.
III. Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT
1.

Mrs. Berger’s motion (Doc. 160) is DENIED. Mrs. Berger’s accompanying
request for oral argument is DENIED.

2.

The stay previously entered in this case is lifted. The Clerk is directed to enter
final judgment consistent with the April 23, 2015 Order (Doc. 155).

/s/ James G. Carr
Sr. U.S. District Judge

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