Florida Appeals Court Strikes Punitive Damages, Orders Remittitur On Others In Tobacco Case

 WEST PALM BEACH, Fla. - (Mealey's) A Florida appeals court conditionally struck $5 million in punitive damages from a tobacco wrongful death suit June 12 and directed a trial judge to grant remittitur on $15 million in survivors' consortium claims (Philip Morris USA Inc., et al. v. Sharon Putney, et al., Nos. 4D10-3606 and 4D10-5244, Fla. App., 4th Dist.; 2013 Fla. App. LEXIS 9279). 

(Opinion available.  Document #04-130619-035Z.)

The Fourth District Court of Appeal panel said that as in Philip Morris USA, Inc. v. Kayton (104 So. 3d 1145 [Fla. 4th DCA 2012]) [enhanced version available to lexis.com subscribers], the trial judge incorrectly struck the defendants' statute of repose defense based on the preclusive findings of Engle v. Liggett Group Inc. (945 So. 2d 1246 [Fla. 2006]) [enhanced version].   

"Similar to Kayton, the entry of a partial summary judgment on the statute of repose defense deprived the Tobacco Companies of their right to defend on that issue and have the jury make the determination," the panel said.  The punitive damages award, which was assessed at $2.5 million each against Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. but not against defendant Lorillard Group LLC, was not excessive, the panel said, and will be reinstated if, on retrial, the plaintiffs prevail on the issue. 

Consortium 

The jury's award of $5 million to each of the late Margot Putney's three surviving children was excessive compared with other verdicts and given that the adult children did not live with or depend on their mother, the panel held.  The trial court thus erred in failing to grant remittitur, the panel said. 

The jury in the 17th Judicial Circuit Court for Broward County, Fla., with Judge Jeffrey E. Streitfeld presiding, returned a verdict for the plaintiffs on April 26, 2010, on negligence, strict liability and conspiracy to commit fraud by concealment (Nos. 07-36668 CV [19] and 08-80000 [19]).  The jury found for the tobacco companies on the fraud-by-concealment claim.  The jury apportioned responsibility for the decedent's death at 15 percent for Philip Morris, 30 percent for RJR and 20 percent for Liggett, with the remaining 35 percent for the decedent herself.  With the appropriate reduction for proportionate responsibility, the plaintiffs would have received approximately $14.8 million had the verdict been upheld. 

Judge Burton C. Conner wrote the opinion, in which Judges Carole Y. Taylor and Spencer D. Levine concurred.  

Margot Putney began smoking in 1953 at age 15 and died in 1995 with a diagnosis of oat-cell/small-cell lung cancer caused by smoking.  Daughter Sharon and sons Glen and Guy Putney brought claims asserting that their mother was a member of the Engle class and entitled to the preclusive findings established by the Florida Supreme Court. 

Counsel 

Philip Morris is represented by Gary L. Sasso of Carlton Fields in Tampa, Fla., and Stephen N. Zack and Andrew S. Brenner of Boies, Schiller & Flexner in Miami.  R.J. Reynolds is represented by John P. Wiederhold of Wiederhold & Moses in West Palm Beach and Gregory G. Katsas of Jones Day in Washington, D.C.  Liggett is represented by Karen H. Curtis and Craig Salner of Clarke Silverglate in Miami and Kelly Anne Luther of Kasowitz, Benson, Torres in Miami.  The plaintiffs are represented by Lincoln J. Connolly of Rossman, Baumberger, Reboso, Spier & Connolly in Miami. 

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