TALLAHASSEE, Fla. - (Mealey's) A Florida appeals court on Feb. 14 overturned a $40.8 million punitive damages verdict in a tobacco wrongful death case as excessive but let stand a $10.8 million award of compensatory damages, the highest so far in Florida tobacco litigation (R.J. Reynolds Tobacco Company v. Lyantie Townsend, No. ID104585, Fla. App., 1st Dist.).
(Opinion available. Document #04-120321-001Z.)
The First District Florida Court of Appeal panel said the punitive damages award was out of proportion to the compensatory damages award and significantly higher than the $25 million awarded in R.J. Reynolds Tobacco Co. v. Martin (53 So. 3d 1060, 1066 [Fla. 1st DCA 2010], rev. den., 67 So. 3d 1050 [Fla. 2011]), the highest punitive damages award to be affirmed in the litigation.
The panel remanded the punitive damages portion to allow plaintiff Lyantie Townsend to choose between a new jury trial solely to determine punitive damages or acceptance of a remittitur judgment to be determined by Alachua County Circuit Court Judge Victor L. Hulslander, the trial judge.
A divided panel allowed the compensatory damages verdict to stand, saying that award was not out of line with the $5 million award in Martin or the $7.8 million in Liggett Group LLC v. Campbell (60 So. 3d 1078 [Fla. 1st DCA]). Both verdicts are currently on petition for a writ of certiorari before the U.S. Supreme Court.
"Although the $10.8 million awarded by the jury is certainly at the outer limit of reasonableness for a case such as this, the award is not so inordinately large that it shocks our collective judicial conscience," the panel said.
The panel rejected without comment the company's claims that Engle v. Liggett Group, Inc. (945 So.2d 1246 [Fla. Sup. 2006], cert denied, 128 S.Ct. 96 ) violates its constitutional due process and a claim that the plaintiff failed to show reliance.
Judge William A. van Nortwick Jr. wrote for the panel, joined by Judge Simone Marstiller. Judge T. Kent Wetherell II dissented, saying he would have vacated the compensatory damages verdict as well.
"The $5 million non-economic damage awards in Martin and Hall raised my proverbial judicial eyebrow, but the $10.8 million award in this case shocks my judicial conscience," the judge said. "I recognize that a damage award should not be declared excessive simply because it is 'conscience-shocking' or exceeds the amount the court considers appropriate; rather, as the majority explains, the award should only be disturbed by the court if it is 'so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.'
"This standard is, as it should be, difficult to meet. However, unlike the majority, I am persuaded that the compensatory damage award in this case meets this standard."
Townsend sued R.J. Reynolds Tobacco Co. (RJR) on behalf of her late husband, Frank Townsend. They were married in 1956, the panel said, and enjoyed a "very close relationship" until Frank Townsend's death at 59, just as Lyantie Townsend was about to join her husband in retirement "and realize their life-long dream of traveling together."
Townsend is represented by Steven Brannock, Celene H. Humphries and Tyler K. Pitchford of Brannock & Humphries in Tampa, Fla., Gregory D. Prysock of Morgan & Morgan in Jacksonville, Fla., and Keith R. Mitnik of Morgan & Morgan in Orlando, Fla.
RJR is represented by Gregory G. Katsas of Jones Day in Washington, D.C.; Stephanie E. Parker, John F. Yarber and John M. Walker of Jones Day in Atlanta; Robert B. Parrish, Charles M. Trippe and David C. Reeves of Moseley, Prichard, Parrish, Knight & Jones in Jacksonville; and Hada de Varona Haulsee of Womble, Carlyle, Sandridge & Rice in Winston-Salem, N.C.
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