JOYCE HARDIN, ETC.,

v.

R.J. REYNOLDS TOBACCO COMPANY

Third District Court of Appeal State of Florida

Opinion filed August 5, 2020. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-0958 Lower Tribunal No. 12-29000 ________________

Joyce Hardin, etc., Appellant/Cross-Appellee,

vs. R.J. Reynolds Tobacco Company, Appellee/Cross-Appellant,

An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge.

The Ferraro Law Firm, P.A., and Allan B. Kaiser, and Dick M. Ortega, and Juan P. Bauta, II, for appellant/cross-appellee.

King & Spalding, LLP, and Scott Michael Edson (Washington, DC), and William L. Durham, II (Atlanta, GA), for appellee/cross-appellant.

Before SALTER, LINDSEY, and HENDON, JJ.

LINDSEY, J.

2 This is the second appeal before this Court in this Engle progeny case. Appellant/Cross-Appellee Joyce Hardin appeals from an order granting a directed verdict on her punitive damages claims in favor of Appellee/Cross-Appellant R.J. Reynolds Tobacco Company due to insufficient evidence. Because Ms. Hardin failed to present sufficient evidence that R.J. Reynolds’s misconduct was related to her product liability claims and was a substantial cause of Thomas Hardin’s COPD and death, we affirm.¹

I.

BACKGROUND

In December 2007, Thomas B. Hardin commenced an Engle progeny personal injury action to recover damages for contracting COPD/emphysema² after smoking cigarettes manufactured by R.J. Reynolds, American Tobacco Company, and Brown & Williamson (collectively, the “Reynolds Companies”), all of which are now owned by R.J. Reynolds. Mr. Hardin passed away in February 2012, and his widow, Joyce Hardin (“Plaintiff”), filed the underlying wrongful death action asserting nonintentional product liability claims for strict liability and negligence and intentional

1.

Smoking cigarettes causes chronic obstructive pulmonary disease, or COPD;

2.

Cigarettes containing nicotine are addictive;

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3.

Defendant R.J. Reynolds Tobacco Company was negligent;

4.

Defendant R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective or unreasonably dangerous.

See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1276 (Fla. 2006) (holding that with respect to compensatory damages, the above findings in favor of the Engle Class can stand). Importantly, the trial court explained that “[t]hese findings are not applicable to this case now, but are provided solely for context.” See Soffer, 187 So. 3d at 1225 (“[T]he individual progeny plaintiffs are not bound by the prior procedural posture of Engle when pleading punitive damages . . . .” (Emphasis added)). The trial court also read four findings made by the first jury in this case, which were “binding” and could “not be denied or questioned.”:

1. Thomas Hardin was addicted to cigarettes containing

nicotine and such addiction was a legal cause of his chronic obstructive pulmonary disease and death.

2. Joyce Hardin sustained damages for the loss of her

husband, Thomas Hardin’s companionship and protection, and for her mental pain and suffering as a result of Thomas Hardin’s death. Those damages amounted to $776,000.

[3]. The first jury found that Mr. Hardin was 87 percent at fault for causing his own COPD and death and that R.J. Reynolds was 13 percent at fault for causing Mr. Hardin’s COPD and death.

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4. The jury further found that Mr. Hardin did not rely, to

his detriment, on any statement made by R.J. Reynolds or any other tobacco company.

Crucial to our analysis in this case are the following jury instructions on punitive damages, which have not been challenged:³ Punitive damages are warranted against R.J. Reynolds if you find by clear and convincing evidence that R.J. Reynolds was guilty of intentional misconduct or gross negligence related to Plaintiff’s claims of defective product and negligence, which was a substantial cause of Thomas Hardin’s COPD and death.

The court further instructed the jury that it could “not seek to punish R.J. Reynolds for any harm suffered by any individuals other than Thomas B. Hardin.” Moreover, “R.J. Reynolds cannot be punished merely for manufacturing, selling, or advertising cigarettes.”

The jury ultimately deadlocked, writing the following note during deliberations: “We do not think that we can reach a decision in this case.” At this point, R.J. Reynolds renewed several motions for directed verdict, which were initially submitted after Plaintiff rested her case-in-chief. In its motion for directed verdict due to insufficient evidence, R.J. Reynolds argued that Plaintiff had failed to

3 Cf. Fla. Stand. Jury Instr. (Civil) PD 1(b)(1) (“If you find for (claimant) and against (defendant), and you also find that clear and convincing evidence shows that the conduct of (defendant) was a substantial cause of [loss] [injury] [or] [damage] to (claimant) and that such conduct warrants punitive damages under the standards I have given you, then in your discretion you may determine punitive damages are warranted against (defendant).”).

The court delivered an Allen charge to the jury⁴ and proceeded to hear extensive arguments on R.J. Reynolds’s motion for directed verdict while the jury continued deliberations. R.J. Reynolds asserted that based on the jury instructions, the jury could only award punitive damages for misconduct that was a substantial cause of the harm to Mr. Hardin—specifically COPD—but the generic evidence presented to the jury was about lung cancer. R.J. Reynolds also argued that there was a lack of evidence concerning the Kool cigarettes that Mr. Hardin smoked for over 40 years. In short, it was R.J. Reynolds’s position that although Plaintiff presented evidence of misconduct, there was insufficient evidence connecting the misconduct to Mr. Hardin and to the underlying product liability claims. In response, Plaintiff focused on the evidence of misconduct but not on linking that misconduct to Mr. Hardin. For instance, Plaintiff argued that it did not matter

4 An Allen charge “allows a jury to continue deliberations even after it has announced its inability to do so, where there is a reasonable basis to believe a verdict is possible, while cautioning jurors that they should not abandon their views just to get a verdict or to accommodate the majority.” Thomas v. State, 748 So. 2d 970, 977 (Fla. 1999); see also Allen v. United States, 164 U.S. 492 (1896).

5 Although not mentioned at the hearing, Dr. Proctor’s hours long testimony did include a few general references to COPD/emphysema. Dr. Proctor explained that beginning in the 1950s, there was a large amount of new scientific evidence released to the public about cigarette smoking and emphysema. And in 1964, a Surgeon General’s report on COPD, emphysema, chronic bronchitis received wide media coverage. Dr. Proctor also explained that by the 1960s, the tobacco industry recognized that they were in the nicotine business and an internal goal was to “make a safer cigarette by producing addiction without the unattractive side effects of cancer and emphysema.”

II.

STANDARD OF REVIEW

This Court reviews a trial court’s ruling on a motion for directed verdict de novo. See Kopel v. Kopel, 229 So. 3d 812, 819 (Fla. 2017). “[A]n appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Banco Espirito Santo Int’l, Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008) (quoting Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001)); see also De La Torre v. Crete Carrier Corp., 786 So. 2d 1202, 1203 (Fla. 3d DCA 2001) (“A motion for directed verdict should not be granted unless the trial court, after viewing the evidence in the light most favorable to the non-moving party, determines that no reasonable jury could render a verdict for the non-moving party.” (quoting Lipsig v. Ramlawi, 760 So. 2d 170, 175 (Fla. 3d DCA 2000))).

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III.

ANALYSIS

As an initial matter, we highlight the unique procedural posture in this case. Ordinarily, the same jury would hear the evidence pertaining to both compensatory and punitive damages. In other words, the same jury that awarded compensatory damages would also decide whether the conduct giving rise to compensatory damages was deserving of punishment. But here, due to the fact that the case was remanded for a new trial on the issue of punitive damages following Plaintiff’s first appeal, there were two separate juries, each considering the evidence presented during their corresponding trials. Our review of the record is limited to the evidence that was before the second jury on punitive damages. Plaintiff’s primary argument below and on appeal is that there was sufficient evidence for a reasonable jury to find that R.J. Reynolds’s misconduct was intentional or grossly negligent. We agree, but this is not in dispute. As R.J. Reynolds freely admitted during the hearing on its motion for directed verdict: “Plaintiff has . . . done a lot to try to show gross negligence or intentional misconduct, and that was their entire case . . . .” But, as R.J. Reynolds went on to explain, the issue is whether Plaintiff presented sufficient evidence “to connect that misconduct to the underlying claims that specifically caused harm to Mr. Hardin.” The unchallenged jury instructions below required Plaintiff to present evidence not only that R.J. Reynolds was guilty of intentional misconduct or gross

11 negligence, but also that such misconduct or gross negligence was related to Plaintiff’s product liability claims and was a substantial cause of Mr. Hardin’s COPD and death. This is consistent with the Engle caselaw, which requires an individualized determination with respect to punitive damages. See Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424 (Fla. 2013) (explaining that in Engle, the Florida Supreme Court “reversed the class-wide punitive damages award as premature because, though the Phase I jury decided the Engle defendants’ common liability to the class under certain claims, it did not decide the plaintiff-specific elements of those claims and, therefore, ‘did not determine whether the defendants were liable to anyone’” (quoting Engle, 945 So. 2d at 1262-63)). Although Plaintiff does not challenge the jury instructions, Plaintiff has completely avoided addressing the language requiring a link between R.J. Reynolds’s misconduct and Plaintiff’s claims and Mr. Hardin’s injuries. Instead, Plaintiff repeatedly argues that there was sufficient evidence that R.J. Reynolds’s misconduct was “intentional” or “grossly negligent” within the meaning of section 768.72, Florida Statutes. Pursuant to section 768.72(2), “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Notably absent from section 768.72, however, is the language

Q. Dr. Proctor, in preparation for your testimony in this

case, have you read any depositions of family members of Thomas Hardin, the decedent?

A. No.

Q. Did you read Thomas Hardin’s deposition that was taken before his death?

A. No.

Q. Have you reviewed any medical records in this case?

A. No.

Q. Have you reviewed any expert witness depositions in

this case?

A. No.

Q. Have you talked to any of Plaintiff's experts?

A. No.

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Q. Have you talked to any family members of Thomas

Hardin?

A. No.

. . . .

Q. Do you believe that your preparation for this case is

lacking in any way to testify as an expert in this case?

A. No.

Q. Can you explain that?

A. Well, I’m not an expert on the Hardin family. I am an expert on the history of cigarettes, cigarette design, cigarette industry conduct or misconduct. I am a historian in the sense of what happened to everyone, not what happened to one individual family.

Q. Presently, as an expert in Engle progeny cases, do you

offer testimony specific to any particular smoker at any time?

A. No.

Consistent with his answers above, Dr. Proctor gave generic testimony about the tobacco industry’s misconduct, mostly as it related to lung cancer and the industry’s campaign of mass deception. Dr. Proctor never testified that R.J. Reynolds’s misconduct was a substantial cause of Mr. Hardin’s COPD or death. Similar to what was argued below, Plaintiff claims “that the specific lung disease Mr. Hardin contracted was immaterial, since the evidence showed that the Reynolds Companies had knowledge that their products contained deadly defects

14 that caused lung disease, and despite this knowledge, chose to continue selling them without correcting those defects.” This position, however, ignores the clear jury instructions requiring evidence not simply of misconduct but of misconduct “related to Plaintiff’s claims of defective product and negligence, which was a substantial cause of Thomas Hardin’s COPD and death.”

Plaintiff cites a handful of cases in which findings of punitive damages were affirmed on appeal where she claims the evidence “was nearly identical” to the evidence presented below: Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483 (Fla. 1999); R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307 (Fla. 1st DCA 2012); R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010). Plaintiff also cites the following two cases as supplemental authority: R.J. Reynolds Tobacco Co. v. Ledo, 274 So. 3d 416 (Fla. 3d DCA 2019); Cote v. Philip Morris USA, Inc., 400 F. Supp. 3d 1295 (M.D. Fla. 2019).

We are not persuaded that these cases are applicable under the unique circumstances present here. The juries that awarded compensatory damages in those cases were the same juries that determined entitlement to punitive damages. In each case, the jury first determined the tortious conduct that harmed the plaintiff and then decided whether that conduct warranted punishment. Unlike here, the juries were not merely presented with generic evidence of misconduct. For instance, in Ballard, a product liability action involving Kaylo, a carcinogenic, asbestos-containing

Similarly, Townsend and Martin also involved extensive evidence that smokers had detrimentally relied on fraudulent statements and that the misconduct associated with that fraudulent behavior warranted punitive damages. In other words, the misconduct in those cases was related to the plaintiffs’ intentional tort claims. See Townsend, 90 So. 3d at 313 (“The record of this case . . . is replete with evidence of the decades-long, wanton and intentional conduct by RJR in vigorously, persuasively marketing to the public (including young people) a product the company knew was addictive; willfully concealing the serious health hazards posed by cigarette smoking; affirmatively deceiving the public into believing that cigarettes may not be harmful; and refusing to remove certain ingredients in cigarettes (such as nicotine) that the company counted on to sustain sales.”); Martin, 53 So. 3d at 1069 (affirming jury’s fraud findings and concluding that “the record contains abundant evidence from which the jury could infer Mr. Martin’s reliance on pervasive misleading advertising campaigns”).

Here, in contrast, the first jury returned a defense verdict on Plaintiff’s intentional tort claims, and the second jury was bound by the first jury’s finding that Mr. Hardin did not rely on any statement made by R.J. Reynolds or any other tobacco company. Consequently, although Dr. Proctor presented similar evidence that

IV.

CONCLUSION

Because Plaintiff failed to present evidence that R.J. Reynolds was engaged in misconduct that was related to her product liability claims and that was a substantial cause of Mr. Hardin’s COPD and death, we affirm the trial court’s order granting a directed verdict in favor of R.J. Reynolds due to insufficient evidence. Affirmed.