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

Filing 197

ORDER denying 139 Defendant's Motion for New Trial or in the Alternative Remittitur; denying 140 Motion to Amend Judgment to Apply Credit for Guaranteed Sum in Accordance with Stipulation. Signed by Judge James G. Carr on 5/5/2016. (JHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

Judith Berger,
Plaintiff,

Case No.:

v.

3:09-cv-14157

ORDER

Philip Morris USA, Inc.,
Defendant.

Carr, D.J. 1
This is an “Engle-progeny” 2 lawsuit by Plaintiff Judith Berger (“Mrs. Berger”), a former
smoker of cigarettes, against the manufacturer of those cigarettes, Defendant Philip Morris USA,
Inc. (“PM USA”). The matter is before me on PM USA’s two remaining tolling motions. The
first is “Defendant’s Motion for New Trial or in the Alternative Remittitur.” (Doc. 139). The
second is Defendant’s “Motion to Amend the Judgment to Apply Credit for Guaranteed Sum in
Accordance with Stipulation.” (Doc. 140).
For the reasons that follow, I deny both motions.

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., 945 So. 2d 1246 (Fla. 2006) (Engle III), 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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I. PM USA’s Motion for New Trial or in the Alternative Remittitur (Doc. 139)
PM USA moves to reduce both Mrs. Berger’s compensatory and punitive damages
awards. (Doc. 139). PM USA contends that the awards are so excessive that they indicate
passion or prejudice.
At trial, the jury returned a verdict for Mrs. Berger on her claims of negligence, strict
liability, fraudulent concealment, and conspiracy-to-conceal. (Doc. 92). Although Mrs. Berger
requested $10 million in compensatory damages (Doc. 125 at 70), the jury awarded $6.25
million instead. (Doc. 92 at 4). The jury also apportioned 40% of the fault to Mrs. Berger (id. at
2), thereby reducing her compensatory recovery to $3.75 million.
Regarding punitive damages, I permitted the jury to consider whether to award such
damages only with respect to Mrs. Berger’s fraudulent concealment and conspiracy-to-conceal
claims. 3 (Doc. 127 at 39-40). 4 Following a separate trial on punitive damages, the jury awarded
such damages in the amount of $20,760,000.14. (See Doc. 100).
I later granted PM USA judgment for want of proof as a matter of law on the fraudulent
concealment and conspiracy-to-conceal claims.

(Doc. 155).

Consequently, I vacated the

punitive damages award, so no such award is pending. (Id. at 27, ¶ 2). That moots PM USA’s
argument that the punitive damages award is excessive. PM USA can renew its argument if I
grant Mrs. Berger’s pending Rule 60(b) motion (Doc. 190) and a punitive damage award
thereafter ultimately results.
3

At the time, this was consistent with the opinion of Florida’s First District Court of
Appeal in Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456 (Fla. 1st DCA 2012). The
Florida Supreme Court overturned that opinion in Soffer v. R.J. Reynolds Tobacco Co., –– So. 3d
––, 2016 WL 1065605 (Fla. 2016), and a Rule 60(b) motion is pending before me on that basis.
(Doc. 190).
4

Unless otherwise noted, I cite to the page number electronically designated by the
CM/ECF system.
2

As for reducing the compensatory damages award, “[t]he court may, on motion, grant a
new trial on all or some of the issues – and to any party… after a jury trial, for any reason for
which a new trial has heretofore been granted in an action at law in federal court…” Fed. R. Civ.
P. 59(a)(1), (a)(1)(A). Whether to grant a new trial or remittitur on the grounds of excessive
damages is a matter within the sound discretion of the district court. Simon v. Shearson Lehman
Bros., Inc., 895 F.2d 1304, 1310 (11th Cir. 1990). In a diversity case, the court looks to state
substantive law to determine whether the verdict is excessive. See Roboserve, Ltd. v. Tom's
Foods, Inc., 940 F.2d 1441, 1446 (11th Cir. 1991). Motions for remittitur under Florida law are
governed by statute, which provides as follows:
In determining whether an award is excessive or inadequate in light of the facts
and circumstances presented to the trier of fact and in determining the amount, if
any, that such award exceeds a reasonable range of damages or is inadequate, the
court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption
on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a
verdict or misconceived the merits of the case relating to the amounts of damages
recoverable;
(c) Whether the trier of fact took improper elements of damages into account or
arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of
damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it
could be adduced in a logical manner by reasonable persons.
Fla. Stat. § 768.74(5). See Normius v. Eckerd Corp., 813 So.2d 985, 988 (Fla. 2d DCA 2002)
(quoting Bould v. Touchette, 349 So.2d 1181, 1184–85 (Fla.1977)) (“The verdict should not be
disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a
reasonable range within which the jury may properly operate.” .

3

I must remember that where damages for pain and suffering are involved, I should be
deferential to “the enlightened conscience of the jury” because these kinds of damages are “even
further removed from exact calculation and certain measurement.” Braddock v. Seaboard A.L.R.
Co., 80 So. 2d 662, 668 (Fla. 1955); see also Angrand v. Key, 657 So. 2d 1146, 1149 (Fla. 1995).
In consideration of the foregoing, I do not find that the jury’s compensatory damages
award was excessive. The award does not shock my conscience. The compensatory damages
included a component for pain and suffering, which defies an objective measure. Having heard
testimony from Mrs. Berger and her doctors about the effects of chronic obstructive pulmonary
disorder (“COPD”), the jury could reasonably have awarded significant damages for pain and
suffering.
Moreover, the award was not out of line with compensatory damage awards in other
tobacco tort cases. (See Doc. 146 at 10-12). PM USA quarrels with the wisdom of some of
those damages awards (Doc. 148 at 3-4), but I do not find it appropriate to second-guess the
wisdom my colleagues on the state bench who upheld those awards. Moreover, the jury declined
to award Mrs. Berger the full amount of compensatory damages she requested. Whereas Mrs.
Berger requested $10 million in damages, the jury awarded $6.25 million, or five eighths of the
requested figure. The jury further reduced that award by finding that Mrs. Berger was 40%
comparatively at fault. This does not reflect that the jury was influenced by passion or prejudice.
Accordingly, I deny PM USA’s “Motion for New Trial or in the Alternative Remittitur” (Doc.
139).
II. PM USA’s “Motion to Amend the Judgment
to Apply Credit for Guaranteed Sum
in Accordance with Stipulation” (Doc. 140)

4

Finally, PM USA argues that the punitive damages award should be reduced on account
of a stipulation it purportedly entered into with Engle class members in 2000. Because I have
vacated the punitive damages award (Doc. 155 at 27, ¶ 2), and no such award is pending, this
argument is moot. PM USA may renew its argument if I grant Mrs. Berger’s Rule 60(b) motion
and a punitive damages ultimately results.
III. Further Proceedings
As this Order resolves the last of the three tolling motions identified in the Eleventh
Circuit’s letter suspending the notice of appeal (Doc. 190, Ex.1), PM USA’s notice of appeal
(Doc. 176) will now be unsuspended, and jurisdiction will vest again in the appellate court. Fed.
R. App. P. 4(a)(4)(B); Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d 713, 74546 (11th Cir. 2013). Because Mrs. Berger filed her Rule 60(b) motion more than twenty-eight
days after I entered judgment, it is not a tolling motion, and it will not prevent the court of
appeals from reassuming jurisdiction. See Fed. R. App. P. 4(a)(4)(A)(vi); Goode v. Wild Wing
Cafe, 588 F. App'x 870, 873 (11th Cir. 2014) (citing Am. Mfrs. Mut. Ins. Co. v. Edward D. Stone,
Jr. & Assoc., 743 F.2d 1519, 1522 (11th Cir.1984)).
Nevertheless, I retain jurisdiction to consider Mrs. Berger’s Rule 60(b) motion, and to
take one of two actions. Mahone v. Ray, 326 F.3d 1176, 1180 (11th Cir. 2003). I can either: (a)
deny the motion, or (b) indicate my “belief that the arguments raised are meritorious.” Id. If I
“select[ ] the latter course, the movant may then petition the court of appeals to remand the
matter so as to confer jurisdiction on the district court to grant the motion.” Id. Accordingly, I
will hear oral arguments on Mrs. Berger’s Rule 60(b) motion on May 10, 2016, as scheduled
(Doc. 187), and thereafter issue a decision, keeping the aforementioned constraints in mind.
IV. Conclusion

5

For the foregoing reasons, it is hereby
ORDERED THAT
1.

Defendant’s “Motion for New Trial or in the Alternative Remittitur” (Doc. 139)
be, and the same hereby is denied; and

2.

Defendant’s “Motion to Amend the Judgment to Apply Credit for Guaranteed
Sum in Accordance with Stipulation” (Doc. 140) be, and the same hereby is
denied.

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

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