Court: New Evidence For Punitive Damages Was Not Precluded By Remand

JEFFERSON CITY, Mo. — (Mealey’s) Saying that a trial judge did not err by allowing new mitigating evidence to be presented to a jury considering the amount of punitive damages on remand, the Missouri Supreme Court on Sept. 10 affirmed a $1.5 million judgment in a long-running tobacco wrongful death case (Lincoln Smith v. Brown & Williamson Tobacco Corporation, No. SC92961, Mo. Sup.).

 (Opinion available. Document #04-130918-010Z.) 

The Supreme Court’s ruling vacates the Western District Missouri Court of Appeals’ holding that Judge Marco A. Roldan’s decision to allow Brown & Williamson Tobacco Co. (B&W) to argue that any punitive damages award would be paid by successor R.J. Reynolds Tobacco Co. (RJR) exceeded the scope of the Court of Appeals’ remand mandate. 

Surviving family members of Barbara Smith argued that allowing the testimony was in effect a substitution of parties, but the Supreme Court disagreed with the family and with the Court of Appeals’ interpretation of its own mandate. 

Type Of Remand 

“The type of remand has legal consequence,” the court said, citing Butcher v. Main (426 S.W.2d 356, 358 [Mo. 1968]).  “A general remand leaves all issues not conclusively decided open for consideration at the new trial.  At retrial following a general remand, new evidence may be produced.” 

“As the court of appeals instructed in Smith I, [Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748 (Mo. App. W.D. 20080] the circuit court conducted a retrial only as to punitive damages, only on the Smiths' strict liability product defect claim, and only against B&W,” the court said.  “That is all that the general mandate required.  The mandate in Smith I did not address—expressly or by implication—the scope of the evidence that would be admissible on remand.  Although it may be that B&W sought to mitigate its damages by presenting evidence of R.J. Reynolds's historical corporate citizenship and research and marketing efforts, that did not result in R.J. Reynolds being effectively substituted as the defendant.” 

“While evidence concerning R.J. Reynolds's conduct might be of questionable relevance,” the court said, “the Smiths have made clear on this appeal that they raise no relevance issue independent of their contention that admission of the R.J. Reynolds evidence exceeded the scope of the mandate.” 

Original Trial 

In the first stage of the original trial, the Jackson County Circuit Court jury returned a verdict for B&W on the plaintiffs’ fraudulent concealment and conspiracy claims but returned a verdict in favor of the Smiths on the negligent design, negligent failure to warn and strict liability product defect claims, awarding $2 million in compensatory damages.  The jury further found that Barbara Smith was 75 percent at fault, and the trial court reduced the compensatory damages to $500,000.  Also in the first stage of trial, the jury found B&W liable for damages for “aggravating circumstances.”  In the second stage of trial, the jury assessed $20 million in punitive damages. 

The Western District Court of Appeals vacated the punitive damages verdict in 2005 (Smith I) on the ground that it had struck two of three claims upon which punitive damages could be assigned, leaving only strict liability product defect.  Because the jury had not specified what portion of the award pertained to the surviving claim, the court remanded for retrial on that issue only. 

On remand, Judge Roldan bifurcated the trial, ruling that in the phase to determine if punitive damages were warranted, evidence would be limited to that presented in the original trial, but in the phase to determine the amount of punitive damages, new evidence could be presented.  The Supreme Court said neither party objected to that evidentiary ruling, which allowed B&W to offer evidence of RJR’s “historical corporate citizenship in order to mitigate B&W's punitive damages.”  The subsequent judgment of $1.5 million in punitive damages was appealed both by Smith’s family and the tobacco company. 

Longtime Smoker 

The Independence, Mo., woman was a longtime smoker and died of a heart attack in 2000 at age 73. 

The opinion is by Judge Zel M. Fischer.  Judge Laura Denvir Stith did not participate. 

The Smiths are represented by Kenneth B. McClain II of Humphrey Farrington & McClain in Independence and Susan Ford Robertson of the Robertson Law Group in Kansas City, Mo.  B&W is represented by Jeffrey S. Bucholtz of King & Spalding in Washington, D.C. 

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