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Florida Appeals Court Vacates Punitive Damages, Allows Compensatories, In Tobacco Case

WEST PALM BEACH, Fla. — (Mealey’s) A Florida appeals court vacated $50,000 in punitive damages in a smoking wrongful death case Aug. 14, but allowed a compensatory damages award of approximately $957,000 to stand (R.J. Reynolds Tobacco Company v. Pamela Ciccone, No. 4D11-3807, Fla. App., 4th Dist.; 2013 Fla. App. LEXIS 12726 [enhanced opinion available to subscribers]). 

The Fourth District Court of Appeal cited the First District’s decision in Soffer v. R.J. Reynolds Tobacco Co. (106 So. 3d 456, 460 [Fla. 1st DCA 2012]) [enhanced version]  that plaintiffs asserting claims as class members pursuant to Engle v. Liggett Group Inc. (945 So. 2d 1246 [Fla. 2006]) [enhanced version] can recover punitive damages only for the intentional torts of concealment or conspiracy. 

“Engle progeny” refers to cases stemming from a class action lawsuit originally filed against cigarette makers in 1994.  The class was decertified after a $145 billion punitive damages verdict, but the Florida Supreme Court ruled that the individual cases could proceed using liability findings from the class trial as preclusively established.  Exactly what was established at the original Engle trial has been litigated in individual trials. 


“The Soffer reasoning is persuasive,” the Fourth District panel said.  “The Engle class pled for punitive damages only on its intentional tort claims.  . . .  By virtue of going through the litigation process, unlike other decertification cases, Engle progeny plaintiffs were conferred benefits beyond mere equitable tolling, including the significant ‘res judicata effect’ of the Engle jury’s Phase I findings on liability.  If the progeny plaintiffs wish to accept such enormous benefits, it makes sense that they must also take the ‘bitter with the sweet,’ since permitting otherwise would allow the plaintiffs to take advantage where the class representatives, and the class as a whole, otherwise would not. 

“We agree with R.J. Reynolds that the trial court erred in allowing [Pamela] Ciccone to recover punitive damages under the theory of gross negligence since that cause of action was not pled in the original Engle class case and the jury found for the defense on [Ciccone’s] concealment and conspiracy claims,” the panel said.  “We concur with the analysis of the first district in Soffer . . . which held that Engle progeny plaintiffs may recover punitive damages only on claims for concealment or conspiracy.” 

Ciccone sued R.J. Reynolds in 2004, two years after her husband, George N. Ciccone, a smoker from the age of 8, died of lung cancer.  The Engle decision created a death or illness cut-off date of Nov. 21, 1996, which would have put George Ciccone’s death outside the class period, but Pamela Ciccone amended her complaint, alleging that her husband developed peripheral vascular disease (PVD), a smoking-related disease recognized in Engle, within the class period.  Ciccone’s fourth amended complaint asserts claims for strict liability, breach of express warranty, breach of implied warranty, civil conspiracy to fraudulently conceal, fraudulent concealment, gross negligence and negligence. 

Conflict Certified 

The panel certified a conflict with the First District’s holding in Castleman v. R.J. Reynolds Tobacco Co. (97 So. 3d 875 [Fla. 1st DCA 2012]) [enhanced version]. 

The opinion is by Judge Robert M. Gross, with Judge Melanie G. May and Associate Judge Laura Johnson concurring.  Appeal was taken from the 17th Judicial Circuit Court for Broward County, with Judge Jack B. Tuter presiding (No. 04-13258-CV-19). 

R.J. Reynolds is represented by Gordon James III, Eric L. Lundt and Lenore C. Smith of Sedgwick in Fort Lauderdale, Fla., Gregory G. Katsas of Jones Day in Washington, D.C., and Charles R.A. Morse of Jones Day in New York.  The plaintiff is represented by Bard D. Rockenbach of Burlington & Rockenbach in West Palm Beach, Mark E. Millard of Engstrom, Lipscomb & Lack in Los Angeles, William J. Wichmann of the Law Offices of William J. Wichmann in Fort Lauderdale and J. Michael Fitzgerald of the Law Offices of Fitzgerald and Associates in Charlottesville, Va.

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