Florida Appeals Court Affirms $25 Million In Punitives In Tobacco Death Verdict

Florida Appeals Court Affirms $25 Million In Punitives In Tobacco Death Verdict

MIAMI — (Mealey’s) The Third District Florida Court of Appeal affirmed $25 million in punitive damages to the widow of a smoker Sept. 4, saying the award, which was in addition to $16 million in compensatory damages, was not unconstitutionally excessive (Lorillard Tobacco Co. v. Dorothy Alexander, No. 3D12-1593, Fla. App., 3rd Dist.) [enhanced opinion available to lexis.com subscribers]. 

(Opinion available.  Document #04-130918-007Z.) 

“[W]e conclude that this record is replete with evidence of Lorillard’s conduct, which the jury and the trial court could find sufficiently reprehensible to warrant the imposition of sanctions in the form of the $25 million punitive damages award,” the panel said.  “The plaintiff provided more than sufficient evidence to show Lorillard’s conduct, both individually and as a member of the tobacco industry, of continuous, repeated, and aggressive attempts to discredit the scientific research revealing the harmful and addictive nature of cigarettes and to cast doubt on the validity of the scientific research by mounting advertising and public relations campaigns. 

“The plaintiff similarly provided evidence of more than a half-century of Lorillard’s reckless disregard of the scientific findings and of its indifference to the potential physical harm to consumers caused by its product for its own purely economic gain.” 

BMW 

“Unlike compensatory damages, which are intended to redress a concrete loss, punitive damages, like criminal penalties, are intended to punish past conduct and to deter future behavior,” the panel said, citing BMW of N. Am., Inc. v. Gore (517 U.S. 559, 568 [1996]) [enhanced version].  “Based on the . . . facts and evidence presented at trial, we conclude that the jury’s decision to award punitive damages against Lorillard was supported by ample evidence of Lorillard’s own conduct and, in compliance with the trial court’s instructions to the jury, was based on the harms caused to Coleman [Alexander] by Lorillard —individually and as a co-conspirator with the other tobacco companies.” 

Lorillard did not object to a remittitur of compensatory damages to $10 million when it was granted, the panel said, and is now estopped from arguing for a new trial on damages. 

“While non-economic damages are inherently difficult to measure, the jury and the trial court, who had the unique opportunity to observe Mrs. [Dorothy] Alexander and to hear and consider all the evidence presented during the three-week trial, certainly were in a position to evaluate and determine the intensity and weight of Mrs. Alexander’s loss and to place a monetary value on that loss,” the panel said.  “In this case, the jury compensated Mrs. Alexander for her mental pain and suffering as she nursed, cared for, and watched the love of her life as he became incontinent and unable to move or breathe.  . . .  Similar, or greater, amounts of compensatory damages have been entered against tobacco companies in cases with similar facts.” 

The panel said the trial judge’s refusal to dismiss a juror who recognized a witness was not an abuse of discretion because Lorillard failed to establish concealment. 

The opinion is by Judge Leslie B. Rothenberg, with Chief Judge Linda Ann Wells and Senior Judge Alan R. Schwartz concurring. 

Trial Court 

Trial was conducted before Judge Peter Lopez of the 11th Judicial Circuit Court for Dade County (Dorothy Alexander v. Lorillard Tobacco Co., No. 07-46830-ca-10, Fla. Cir., 11th Jud. Cir., Dade Co.). 

Pursuant to Engle v. Liggett Group Inc. (945 So. 2d 1246 [Fla. 2006])  [enhanced version] ), Dorothy Alexander sued several tobacco companies, alleging that her husband, Coleman Alexander, was addicted to the nicotine in their cigarettes and that his addiction was a legal cause of his death.  The jury found for the plaintiff on both claims, as well as on negligence, a defective and unreasonably dangerous product, reliance on incomplete information and that Lorillard concealed the health effects and addictive nature of cigarettes. 

The jury awarded $20 million in compensatory damages on Feb. 29 but reduced that to $16 million based on an assignment of 20 percent of responsibility to the decedent.  Upon Lorillard’s motion to remit the compensatory damages, the trial court further reduced those damages to $10 million. 

Dorothy Alexander and Coleman Alexander were married for 38 years when he died of lung cancer in 1995 at age 59, according to Alex Alvarez, one of her attorneys.  Coleman Alexander owned a cleaning business, Alvarez said.  He began smoking in 1950, when he was 14.  He smoked Kent brand cigarettes.

Lorillard was the sole defendant when the case went to trial.

Counsel 

Dorothy Alexander is represented by Alvarez of the Alvarez Law Firm in Coral Gables, Fla.; and Gary Paige of Trop & Ameen in Miami; Robert S. Glazier of the Law Office of Robert S. Glazier in Miami; John S. Mills and Courtney Brewer of The Mills Firm in Tallahassee, Fla.; Jordan Chaikin of Parker Waichman in Bonita Springs, Fla.; and Gary Paige of Gordon & Doner in Pembroke Pines, Fla. 

Lorillard is represented by Elliot H. Scherker, David L. Ross, Julissa Rodriguez and Brigid F. Cech Samole of Greenberg Traurig in Miami.  

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