Kenneth Kerrivan v. R.J. Reynolds Tobacco Company ( 2020 )


Menu:
  •              Case: 18-13045    Date Filed: 03/24/2020   Page: 1 of 31
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-13045
    ________________________
    D.C. Docket No. 3:09-cv-13703-WGY-JBT
    KENNETH KERRIVAN,
    Plaintiff - Appellee,
    versus
    R.J. REYNOLDS TOBACCO COMPANY,
    individually and as successor by merger to the
    Brown and Williamson Tobacco Corporation
    and The American Tobacco Company,
    PHILIP MORRIS USA, INC.,
    Defendants – Appellants.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (March 24, 2020)
    Case: 18-13045        Date Filed: 03/24/2020       Page: 2 of 31
    Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO, *
    District Judge.
    JILL PRYOR, Circuit Judge:
    In this Engle progeny case,1 Philip Morris USA Inc. and R.J. Reynolds
    Tobacco Company (together, the “Tobacco Companies”) appeal the district court’s
    denials of their renewed motions for judgment as a matter of law and motion for a
    new trial or remittitur. The motions challenged the amount of damages a jury
    awarded to plaintiff Kenneth Kerrivan for his intentional tort claims and the
    sufficiency of the evidence to prove his fraudulent concealment and conspiracy to
    fraudulently conceal claims. On appeal, the Tobacco Companies argue that the
    district court should have granted their motions because (1) the compensatory
    *
    Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
    Pennsylvania, sitting by designation
    1
    Engle progeny cases are cases arising from a class action against tobacco companies on
    behalf of Florida-resident smokers who developed smoking-related illness caused by addiction to
    nicotine in cigarettes. See Engle v. Liggett Grp., Inc., 
    945 So. 2d 1246
    (Fla. 2006). In Engle, the
    Florida Supreme Court approved in part and vacated in part the jury’s verdict finding liability,
    vacated the award of punitive damages, and decertified the class, instructing Engle class
    members to pursue individual actions to resolve the remaining individual issues and to recover
    damages.
    Id. at 1254.
    The Court instructed that certain findings would have preclusive effect in
    future individualized actions, including that:
    [S]moking cigarettes causes certain diseases (including lung cancer), [] nicotine is
    addictive, [] the tobacco companies placed cigarettes on the market that were
    defective and unreasonably dangerous, [] the tobacco companies were negligent,
    and [] the tobacco companies concealed or omitted material information about the
    health effects and addictive nature of cigarettes and also conspired with one another
    to do so.
    Philip Morris USA, Inc. v. Duignan, 
    243 So. 3d 426
    , 430 (Fla. Dist. Ct. App. 2017) (citing
    
    Engle, 945 So. 2d at 1257
    n.4, 1276-77).
    2
    Case: 18-13045         Date Filed: 03/24/2020      Page: 3 of 31
    damages award was excessive, (2) the punitive damages award was
    unconstitutional, and (3) Kerrivan failed to prove detrimental reliance as required
    for his fraud claims. 2 With the benefit of oral argument and after careful review of
    the record, we affirm the district court’s denial of the Tobacco Companies’
    motions.
    I.      BACKGROUND
    A.     Factual Background3
    1.        Kerrivan’s Life as a Smoker
    Kerrivan remembers seeing cigarette advertisements throughout his
    childhood. Cigarette advertisements were ubiquitous, appearing on the television
    in his family home and in the stores where he shopped growing up. According to
    Kerrivan, “[t]here was always ads someplace for cigarettes.” Doc. 93 at 78. 4 And
    “[e]verybody seemed to smoke.”
    Id. at 76.
    One of his earliest memories was
    2
    The Tobacco Companies also argue that (1) “application of the Engle findings to
    establish the conduct elements of the plaintiff’s claims violated their due process rights” and (2)
    “the claims for strict liability and negligence are preempted by federal law.” Appellant Br. at 16.
    They concede that our precedent forecloses these arguments and seek only to preserve them for
    further appellate review. Id.; see also Graham v. R.J. Reynolds Tobacco Co., 
    857 F.3d 1169
    ,
    1174, 1178-80 (11th Cir. 2017) (en banc).
    3
    In describing the facts, we view the evidence in the light most favorable to Kerrivan and
    draw all reasonable inferences and credibility choices in favor of the jury’s verdict. See
    Goldsmith v. Bagby Elev. Co., 
    513 F.3d 1261
    , 1275 (11th Cir. 2008) (explaining that when we
    review the denial of a motion for judgment as a matter of law, “[w]e consider all the evidence,
    and the inferences drawn therefrom, in the light most favorable to the nonmoving party” (internal
    quotation marks omitted)).
    4
    “Doc. #” refers to the numbered entry on the district court’s docket.
    3
    Case: 18-13045     Date Filed: 03/24/2020     Page: 4 of 31
    seeing his father rebuke his mother about her smoking habit and imploring her to
    stop. He was surrounded by smokers, including family members and friends.
    Joining them, Kerrivan began smoking at the age of 14, and by the age of 20, he
    was smoking at least a pack of cigarettes every day.
    Over the years, Kerrivan’s smoking became pervasive. He would smoke
    “before [his] feet even hit the floor” in the morning, before sleeping at night, and
    when he awoke during the night to go to the bathroom.
    Id. at 84-86.
    He smoked in
    his car. When allowed, he smoked at work. He smoked even when smoking was
    not allowed, repeatedly clashing with his daughter—once when he left her
    wedding rather than comply with a non-smoking policy and another time when she
    asked him not to smoke in her home because of his grandchild’s presence.
    Kerrivan smoked several brands of cigarettes over the years: Lucky Strikes
    in his early years, then Camels for years before he settled on Marlboros of various
    kinds. He also tried Kool cigarettes because he thought they would be easier on
    his throat, but he hated their taste and threw them away.
    As a Marlboro smoker, Kerrivan smoked filtered Marlboro Reds because he
    believed that the filtered cigarettes would “cut out the tar and nicotine” and that the
    Tobacco Companies made a lighter cigarette to “make [smoking] easier on
    [consumers].”
    Id. at 89;
    see
    id. at 83.
    He saw commercials concerning filtered
    cigarettes that were consistent with this view. At one point, Kerrivan began
    4
    Case: 18-13045     Date Filed: 03/24/2020   Page: 5 of 31
    smoking Marlboro Lights to try to quit smoking. Instead of helping him quit, the
    reduced amount of tar and nicotine made him crave cigarettes more; he increased
    his habit to smoking two packs a day. Another time, he tried Marlboro Ultra
    Lights, believing that they would make it easier for him to quit smoking. Again,
    the lower tar and nicotine had the opposite effect: They led Kerrivan to smoke
    three packs a day because he “was getting nothing out of the cigarette.”
    Id. at 83.
    After approximately 30 years as a smoker, in 1993 Kerrivan was diagnosed
    with chronic obstructive pulmonary disease (“COPD”). He then redoubled his
    efforts to quit. These efforts resulted in panic attacks and a prescription for Xanax
    to alleviate his withdrawal symptoms. Only after his doctor diagnosed him with
    double walking pneumonia in 2006—and warned that he would die in six months
    if his smoking continued—did Kerrivan finally succeed in putting smoking behind
    him.
    Twenty years have passed since Kerrivan first was diagnosed with COPD.
    His life has changed substantially since his diagnosis. He currently suffers from
    “severe[,] end-stage” COPD. Doc. 78 at 230. COPD forced him to transition from
    his active job as a tow truck driver to a desk job as a dispatcher. Now, his poor
    health prevents him from working at all, even though he would prefer to work. He
    can no longer build race cars as he did before his illness. He cannot do anything
    without using his oxygen tank. Basic activities such as showering exhaust him.
    5
    Case: 18-13045    Date Filed: 03/24/2020   Page: 6 of 31
    When he sleeps, he struggles to breathe due to his oxygen tank’s tubing sometimes
    slipping from his nose. Believing, based on his doctor’s advice, that another bout
    of pneumonia would kill him, Kerrivan keeps himself away from other people.
    Even so, he lives his life constantly in and out of the emergency room.
    Kerrivan described quitting smoking as “the hardest thing [he] ever had to
    do in [his] life.” Doc. 93 at 96. If he had known how harmful cigarettes were and
    how hard it would be to quit smoking, he never would have started smoking. He
    never thought that the Tobacco Companies would sell him a product that could
    cause harm to the extent he has suffered.
    2.    Conspiracy to Conceal Effects of Nicotine Cigarettes
    The evidence presented at the jury trial on Kerrivan’s claims showed that the
    tobacco industry, including the Tobacco Companies here, conspired to conceal and
    misrepresent information about the addictiveness of nicotine and the serious health
    risks caused by smoking cigarettes. Industry members agreed to attack the sources
    of health warnings and to cast doubt on the connection between smoking and
    disease. At the same time, the tobacco industry pretended to be on a crusade to
    confirm the safety of its products, promising the American public that it would
    report the discovery of anything harmful. The industry’s intent was not just to hide
    the truth but to create enough doubt about the adverse health effects of smoking to
    give addicted smokers an excuse to keep smoking.
    6
    Case: 18-13045      Date Filed: 03/24/2020    Page: 7 of 31
    The industry’s efforts also included design features, such as added filters,
    that undermined a smoker’s ability to quit smoking. The Tobacco Companies
    began marketing filtered cigarettes to the public as a safer alternative, concealing
    the fact that smokers of filtered cigarettes actually ingested more tar and other
    carcinogens than those who smoked unfiltered cigarettes. They also hid that the
    design of filtered cigarettes purposefully increased the dose of nicotine, which
    increased the addictiveness of the cigarettes, in turn increasing sales. Further,
    despite knowing for decades that smoking nicotine cigarettes was addictive and
    caused serious diseases such as COPD, cigarette manufacturers, including the
    Tobacco Companies, never publicly admitted these facts until the late 1990s, well
    after Kerrivan was diagnosed with COPD.
    B.    Procedural Background
    In 1994, Florida smokers and their survivors filed a class action against
    cigarette companies that included the Tobacco Companies. See Liggett Grp. Inc. v.
    Engle, 
    853 So. 2d 434
    , 440-41 (Fla. Dist. Ct. App. 2003); R.J. Reynolds Tobacco
    Co. v. Engle, 
    672 So. 2d 39
    , 40 (Fla. Dist. Ct. App. 1996). After a year-long trial
    on issues of liability and entitlement to punitive damages for the class as a whole, a
    jury found that each company had breached its duty of care and sold defective
    cigarettes. See 
    Engle, 853 So. 2d at 441
    . The Florida Supreme Court upheld the
    jury verdicts of negligence and strict liability but decertified the class to allow
    7
    Case: 18-13045    Date Filed: 03/24/2020    Page: 8 of 31
    individual actions to determine remaining issues of specific causation, damages,
    and comparative fault. See generally Engle v. Liggett Grp. Inc., 
    945 So. 2d 1246
    (Fla. 2006).
    After the Florida Supreme Court’s decision, members of the Engle class
    filed thousands of individual actions in state and federal courts. In Philip Morris
    USA, Inc. v. Douglas, 
    110 So. 3d 419
    , 427-28 (Fla. 2013), the Court clarified that
    the Engle jury’s findings of negligence and strict liability had preclusive effect in
    these individual actions. We held in Graham v. R.J. Reynolds Tobacco Co. that
    “the Florida Supreme Court in Douglas decided a matter of state law when it
    explained the preclusive effect of the Engle jury’s . . .findings.” 
    857 F.3d 1169
    ,
    1185 (11th Cir. 2017) (en banc). And because “[w]e are bound by the decisions of
    state supreme courts on matters of state law when we exercise diversity
    jurisdiction, subject to the constraints of due process,” we agreed that individual
    actions could proceed consistent with Douglas.
    Id. at 1185-86.
    We also rejected
    the cigarette companies’ arguments that giving preclusive effect to the Engle
    findings violated due process and that federal preemption barred courts from
    affording preclusive effect to the Engle findings of negligence and strict liability
    under state law. See
    id. at 1181-91.
    In this individual action, Kerrivan alleged that he was an Engle class
    member who developed COPD from his addiction to nicotine in cigarettes. He
    8
    Case: 18-13045     Date Filed: 03/24/2020   Page: 9 of 31
    asserted against the Tobacco Companies claims of strict liability, fraudulent
    concealment, conspiracy to fraudulently conceal, and negligence. The district
    court tried Kerrivan’s case in two phases: In Phase I, the jury considered the issues
    of Engle class membership, liability, comparative fault, compensatory damages,
    and whether punitive damages were warranted; in Phase II, the jury determined the
    amount of punitive damages.
    Phase I spanned nine days. In closing argument, Kerrivan’s counsel
    suggested to the jury that $10 million in compensatory damages might be
    appropriate but noted that the jury could go higher or lower than that amount.
    Counsel for the Tobacco Companies criticized this amount as arbitrary but
    suggested no alternative figure. The jury found in Kerrivan’s favor on all counts
    and awarded him $15.8 million in compensatory damages. On comparative fault,
    the jury found Kerrivan 19% at fault, Philip Morris 50% at fault, and R.J. Reynolds
    31% at fault. The jury also decided that the Tobacco Companies’ conduct
    warranted punitive damages. After a one-day trial on Phase II, the jury awarded
    $25.3 million in punitive damages—$15.7 million against Philip Morris and $9.6
    million against R.J. Reynolds.
    The Tobacco Companies filed three renewed motions for judgment as a
    matter of law and a motion for a new trial or remittitur, arguing that: the jury’s
    compensatory damages award was excessive, its punitive damages award was
    9
    Case: 18-13045        Date Filed: 03/24/2020       Page: 10 of 31
    unconstitutional, and Kerrivan’s fraudulent concealment and conspiracy claims
    should not have been submitted to the jury due to a lack of evidence of reliance.
    The district court denied each of the motions. The court determined that the jury’s
    compensatory damages award bore “a reasonable relation to the injury suffered”
    and was within a reasonable range based on comparable cases. Doc. 174 at 7.
    Further, the court found no indication that the jury made its award based on
    passion or prejudice or that it ignored facts or misconceived the merits of the case.
    The district court also concluded that the punitive damages award was not
    unconstitutionally excessive and that the evidence presented at trial supported the
    jury’s verdict on the fraudulent concealment and conspiracy claims. This appeal
    followed.5
    II.     STANDARDS OF REVIEW
    We review the denial of a motion for a new trial or remittitur under an abuse
    of discretion standard. See Action Marine, Inc. v. Cont’l Carbon Inc., 
    481 F.3d 1302
    , 1309 (11th Cir. 2007). We likewise review for an abuse of discretion the
    5
    Kerrivan filed a cross-appeal raising a single issue: whether, if we vacated the jury’s
    fraudulent concealment and conspiracy findings and its punitive damages award, he would be
    entitled on remand to a retrial limited to the entitlement to and award of punitive damages. The
    Tobacco Companies conceded that Kerrivan would be so entitled under Soffer v. R.J. Reynolds
    Tobacco Co., 
    187 So. 3d 1219
    , 1225 (Fla. 2016). We therefore dismissed Kerrivan’s cross-
    appeal.
    10
    Case: 18-13045       Date Filed: 03/24/2020       Page: 11 of 31
    district court’s decision to sustain a compensatory damages award. Bogle v.
    McClure, 
    332 F.3d 1347
    , 1359 (11th Cir. 2003).
    We review de novo the constitutionality of a punitive damages award,
    deferring to the district court’s findings of fact unless clearly erroneous. See
    Action 
    Marine, 481 F.3d at 1309
    . De novo review also applies to the denial of a
    motion for judgment as a matter of law. See Goldsmith v. Bagby Elevator Co., 
    513 F.3d 1261
    , 1275 (11th Cir. 2008).
    III.   DISCUSSION
    This appeal presents three issues: (1) whether the compensatory damages
    award was excessive, (2) whether the punitive damages award was constitutional,
    and (3) whether the district court erred by allowing Kerrivan’s fraud-based claims
    to go to the jury.
    A.      The Compensatory Damages Award Was Not Excessive.
    Under Florida law,6 “in every case for money damages the trial court has
    [an] obligation to determine if the damages award is ‘excessive or inadequate in
    light of the facts and circumstances which were presented to the trier of
    fact.’” Odom v. R.J. Reynolds Tobacco Co., 
    254 So. 3d 268
    , 276 (Fla. 2018)
    6
    In reviewing a compensatory damages award on a state law claim, we evaluate the
    propriety of the award under state law. See Myers v. Cent. Fla. Invs., Inc., 
    592 F.3d 1201
    , 1212
    (11th Cir. 2010); see also Johnson v. Barnes & Noble Booksellers, Inc., 
    437 F.3d 1112
    , 1117
    (11th Cir. 2006) (looking to Florida law to determine whether a compensatory damages award
    was excessive).
    11
    Case: 18-13045     Date Filed: 03/24/2020    Page: 12 of 31
    (quoting Fla. Stat. § 768.74(1)). In imposing this requirement, the Florida
    legislature noted that although juries are a fundamental precept of American
    jurisprudence, requiring a court to review the damages award “provides an
    additional element of soundness and logic to our judicial system and is in the best
    interests of the citizens of this state.” Fla. Stat. § 768.74(6). Florida law requires
    that when a court “finds that the amount awarded is excessive . . . it shall order a
    remittitur.”
    Id. § 768.74(2).
    In determining whether an award is excessive or inadequate in light of the
    facts and circumstances presented to the trier of fact, the court shall consider the
    following criteria:
    (a) Whether the amount awarded is indicative of prejudice, passion, or
    corruption on the part of the trier of fact;
    (b) Whether it appears that the trier of fact ignored the evidence in
    reaching a verdict or misconceived the merits of the case relating to the
    amounts of damages recoverable;
    (c) Whether the trier of fact took improper elements of damages into
    account or arrived at the amount of damages by speculation and
    conjecture;
    (d) Whether the amount awarded bears a reasonable relation to the
    amount of damages proved and the injury suffered; and
    (e) Whether the amount awarded is supported by the evidence and is
    such that it could be adduced in a logical manner by reasonable persons.
    Id. § 768.74(5).
    Applying these criteria, we conclude that the district court did not
    abuse its discretion in upholding the jury’s award of compensatory damages.
    12
    Case: 18-13045     Date Filed: 03/24/2020    Page: 13 of 31
    The evidence presented at trial demonstrated that Kerrivan has suffered from
    COPD every day since 1993. Every aspect of his life has been affected by his
    disease—even breathing is a constant struggle, and he lives tethered to an oxygen
    tank. When he sleeps, his oxygen tank slips from his nose, and “it feels like
    somebody has got a bag of cement on [his] chest.” Doc. 93 at 100. It takes him
    two hours to get dressed in the morning and about an hour and a half to shower
    because his oxygen levels drop from the mild exertion. He cannot work or engage
    in activities he used to enjoy. The prospect of death from complications related to
    his disease haunts his every moment and causes him to stay away from other
    people. Given this evidence, all of the statutory criteria weigh in Kerrivan’s favor.
    The first question in § 786.74(5) asks whether the compensatory damages
    award evinces improper influences on the jury. We find no indication in this
    record that the compensatory damages award was the result of passion, prejudice,
    or corruption. Rather, the compensatory damages award reflected the jury’s
    consideration of the evidence presented at trial; the jury’s award is consistent with
    this evidence. Given this consistency—and absent anything in the record showing
    that the jury was improperly influenced—the answer to the first question is no.
    The second statutory question asks whether the jury ignored evidence or
    misconceived the merits of the case. The compensatory damages award was
    appropriate given the compelling evidence presented at trial about Kerrivan’s
    13
    Case: 18-13045      Date Filed: 03/24/2020   Page: 14 of 31
    injuries. That the jury chose to accept Kerrivan’s evidence and reject the Tobacco
    Companies’ evidence does not mean that the verdict lacked a reasonable basis or
    that the jury ignored evidence or misconceived the merits of the case. Like the
    first question, we answer the second question “no.”
    The third question in § 786.74(5) asks whether improper elements were
    considered or the verdict was based on speculation or conjecture, and the fourth
    question asks whether the award is reasonably related to the damages suffered.
    Nothing in the record or about the award itself suggests that the jury considered
    improper elements in reaching its verdict or that the verdict was based on
    conjecture. The jury was presented with evidence of Kerrivan’s medical issues as
    well as concrete, personal testimony about how his injuries impacted his life. On
    this record, we cannot say that the compensatory damages award bore no
    reasonable relationship to the injuries he suffers. The third and fourth statutory
    criteria also weigh in Kerrivan’s favor.
    The fifth and final inquiry is whether the award is supported by evidence and
    can be logically adduced by reasonable people. Our resolution of the previous
    questions answers this one: a reasonable jury could return this award.
    In applying § 786.74(5) to the compensatory damages award in this case, we
    bear in mind that we must defer to the jury as the finders of fact whose role it is to
    weigh the evidence, evaluate the witnesses’ credibility, and determine the
    14
    Case: 18-13045     Date Filed: 03/24/2020    Page: 15 of 31
    appropriate amount of damages. See Lassitter v. Int’l Union of Operating Eng’rs,
    
    349 So. 2d 622
    , 627 (Fla. 1976) (“Two factors unite to favor a very restricted
    review of an order denying a motion for new trial on ground of excessive
    verdict. . . . The second factor is the deference properly given to the jury’s
    determination of such matters of fact as the weight of the evidence and the
    quantum of damages.”). Given this deference and our conclusions that all the
    statutory criteria for evaluating excessiveness weigh in Kerrivan’s favor, the
    district court did not abuse its discretion in upholding the jury’s award of
    compensatory damages.
    The Tobacco Companies’ arguments address only the first question, whether
    the jury’s award indicated passion or prejudice. They argue that there are three
    indicators of passion or prejudice present in the compensatory damages award:
    that the verdict is (1) significantly higher than the amounts affirmed in similar
    cases, (2) significantly higher than the amount requested by counsel in closing
    argument, and (3) not supported by the evidence. These arguments lack merit.
    Turning to the Tobacco Companies’ first argument, we acknowledge that
    reviewing “amounts awarded in similar cases has at least a limited value” in
    determining whether an award is excessive. Loftin v. Wilson, 
    67 So. 2d 185
    , 189
    (Fla. 1953). But as the Florida Supreme Court has warned, these comparisons are
    “sometimes fraught with danger because, of course, each case is different and must
    15
    Case: 18-13045       Date Filed: 03/24/2020      Page: 16 of 31
    of necessity be measured in the light of the circumstances peculiar to it.” Id.; see
    also Laskey v. Smith, 
    239 So. 2d 13
    , 14 (Fla. 1970) (“In its movement toward
    constancy of principle, the law must permit a reasonable latitude for inconstancy of
    result in the performance of juries.”).
    Without a doubt, the compensatory damages award in this case is higher
    than the awards in other Engle progeny cases, but this fact alone does not establish
    that the jury was swayed by passion or prejudice. 7 “The fact that a damage award
    is large does not in itself render it excessive nor does it indicate that the jury was
    motivated by improper consideration in arriving at the award.” Allred v.
    Chittenden Pool Supply, Inc., 
    298 So. 2d 361
    , 365 (Fla. 1974). A verdict should
    only be disturbed when “it is so inordinately large as obviously to exceed the
    maximum limit of a reasonable range within which the jury may properly operate.”
    Bould v. Touchette, 
    349 So. 2d 1181
    , 1184-85 (Fla. 1977). A review of
    compensatory damages awards in other Engle progeny cases demonstrates that the
    verdict in this case should not be disturbed because it is not outside “the maximum
    limit of a reasonable range” for such cases. Id.; see, e.g., R.J. Reynolds Tobacco
    7
    The Tobacco Companies contend that we should consider only Engle progeny with a
    living plaintiff that have been affirmed upon appellate review. We disagree. The Tobacco
    Companies have offered no authority—binding or persuasive—to support this notion. So, we
    reject this limiting factor in comparing Engle-progeny verdicts. And even if we considered only
    the decisions the Tobacco Companies rely on, we still could not infer from the fact that other
    juries have awarded less damages to living plaintiffs that the award here was excessive.
    16
    Case: 18-13045     Date Filed: 03/24/2020    Page: 17 of 31
    Co. v. Monroe, 
    212 So. 3d 545
    (Fla. Dist. Ct. App. 2017) (affirming $11 million
    compensatory damages award); Philip Morris USA, Inc. v. Cuculino, 
    165 So. 3d 36
    , 39-40 (Fla. Dist. Ct. App. 2015) (affirming $12.5 million compensatory
    damages award); Philip Morris USA, Inc. v. Lukacs, 
    34 So. 3d 56
    (Fla. Dist. Ct.
    App. 2010) (affirming $24.8 million compensatory damages award); see also
    Schoeff v. R.J. Reynolds, 
    232 So. 3d 294
    , 299-300, 309 (Fla. 2017) (overturning
    district court of appeals’ remittitur of compensatory damages award and its ruling
    that punitive damages award was unconstitutionally excessive; upholding award of
    $10.5 million in compensatory damages and $30 million in punitive damages).
    While the $15.8 million compensatory damages award is larger than the
    awards in some other Engle progeny cases, the award does not “obviously []
    exceed” the “reasonable range within which the jury may properly operate.”
    
    Bould, 349 So. 2d at 1185
    . We are persuaded from our review of the record that
    the facts of this case are “simply different” from cases with lower awards, and
    these differences sufficiently account for the higher award. See Odom v. R.J.
    Reynolds Tobacco Co., 
    254 So. 3d 268
    , 280 (Fla. 2018) (internal quotation marks
    omitted); 
    Loftin, 67 So. 2d at 189
    (“[E]ach case is different and must of necessity
    be measured in the light of the circumstances peculiar to it.”).
    As to the Tobacco Companies’ second argument, Florida courts have
    specifically recognized that a jury can “award damages equal to or in excess of
    17
    Case: 18-13045     Date Filed: 03/24/2020    Page: 18 of 31
    those requested by counsel in closing argument.” Lopez v. Cohen, 
    406 So. 2d 1253
    , 1256 (Fla. Dist. Ct. App. 1981). In Schoeff, the Florida Supreme Court held
    that an award was not “unreasonable or excessive” merely because the amount is
    more than what counsel 
    requested. 232 So. 3d at 308
    . Moreover, Florida courts
    have affirmed awards in excess of the plaintiffs’ counsel’s request in other Engle
    progeny cases. See, e.g., 
    Cuculino, 165 So. 3d at 39
    (affirming $12.5 million
    compensatory damages award even though counsel requested only $10 million in
    closing argument).
    Consistent with the notion that a jury can “award damages equal to or in
    excess of those requested by counsel,” 
    Lopez, 406 So. 2d at 1256
    , Kerrivan’s
    counsel gave the jury a $10 million benchmark while reminding them that they
    could go higher or lower than that amount. See Doc. 106 at 60-61. By contrast,
    the Tobacco Companies’ counsel offered no alternative amount or range, and “[i]t
    is difficult for a party to challenge an award as excessive after the fact when that
    party declined to offer any guidance to the jury at trial.” 
    Odom, 254 So. 3d at 280
    .
    That the jury chose, in its discretion, to exceed the benchmark offered does not
    justify remittitur of the compensatory damages award or compel a new trial.
    The Tobacco Companies’ third argument likewise fails. They argue that
    comparison to injuries in other, arguably more serious, COPD cases in which juries
    awarded lower compensatory damages demonstrates a lack of “logical nexus” in
    18
    Case: 18-13045   Date Filed: 03/24/2020   Page: 19 of 31
    this case. Appellant’s Br. at 28. But again, the Florida courts have warned against
    the relative weighing of injuries. See 
    Loftin, 67 So. 2d at 189
    (“[E]ach case is
    different and must of necessity be measured in the light of the circumstances
    peculiar to it.”). Juries are not required to exercise their judgment consistent with
    other juries in other cases. The evidence presented in this case supports the
    compensatory damages award. That other juries in other cases with different
    evidence of injury chose to award lower amounts does not justify overturning the
    award in this case. See 
    Odom, 254 So. 3d at 277
    (“Jurors know the nature of pain,
    embarrassment and inconvenience, and they also know the nature of money. Their
    problem of equating the two to afford reasonable and just compensation calls for a
    high order of human judgment . . . . Their problem is not one of mathematical
    calculation but involves an exercise of their sound judgment of what is fair and
    right.” (quoting Braddock v. Seaboard Air Line R.R. Co., 
    80 So. 2d 662
    , 668 (Fla.
    1955))).
    In sum, the Tobacco Companies failed to demonstrate that the compensatory
    damages award was excessive under Florida law. They therefore failed to establish
    that the district court abused its discretion by denying their motion for a new trial
    or remittitur.
    19
    Case: 18-13045       Date Filed: 03/24/2020      Page: 20 of 31
    B.     The Punitive Damages Award Is Not Unconstitutionally Excessive.
    The Tobacco Companies contend that the punitive damages award was
    unconstitutionally excessive because it is disproportionate to the harm Kerrivan
    suffered. We disagree. 8
    “Elementary notions of fairness enshrined in our constitutional jurisprudence
    dictate that a person receive fair notice not only of the conduct that will subject
    him to punishment, but also of the severity of the penalty that a State may impose.”
    BMW of N. Am., Inc. v. Gore, 
    517 U.S. 559
    , 574 (1996). “Punitive damages may
    properly be imposed to further a State’s legitimate interests in punishing unlawful
    conduct and deterring its repetition,” and states “have considerable flexibility in
    determining the level of punitive damages that they will allow.”
    Id. at 568.
    But an
    award runs afoul of the Due Process Clause when it “can fairly be categorized as
    grossly excessive in relation to these interests.”
    Id. (internal quotations
    omitted).
    To help determine when an award is grossly excessive, the Supreme Court
    has adopted three guideposts: “the degree of reprehensibility” of the defendant’s
    8
    The Tobacco Companies also argue that substantial punitive damages are unnecessary
    to punish the defendants or to deter future misconduct and, to the extent any punitive award is
    necessary, the damages should be low enough that the aggregate punishment across all Engle
    progeny cases should not be excessive. Both arguments are irrelevant to the constitutional test
    for excessiveness. Further, the Tobacco Companies provide no authority to support this view of
    punitive awards. These arguments thus cannot justify reversal of the punitive damages award on
    constitutional grounds. This is not to say, and we do not address here, whether under certain
    circumstances, multiple awards of punitive damages for the same conduct could not produce an
    aggregate amount that would be excessive and conceivably violate due process.
    20
    Case: 18-13045     Date Filed: 03/24/2020    Page: 21 of 31
    actions; “the disparity between the harm or potential harm suffered by [the
    plaintiff] and his punitive damages award; and the difference between this remedy
    and the civil penalties authorized or imposed in comparable cases.”
    Id. at 574-75;
    see also State Farm Mut. Auto. Ins. Co. v. Campbell, 
    538 U.S. 408
    , 418 (2003).
    1.     Degree of Reprehensibility
    “‘The most important indicium of the reasonableness of a punitive damages
    award is the degree of reprehensibility of the defendant’s conduct.’” State 
    Farm, 538 U.S. at 419
    (alteration adopted) (quoting 
    Gore, 517 U.S. at 575
    ). We
    determine the reprehensibility of a defendant by considering whether:
    (1)    the harm caused was physical as opposed to economic;
    (2)    the tortious conduct evinced an indifference to or a reckless disregard
    of the health or safety of others;
    (3)    the target of the conduct had financial vulnerability;
    (4)    the conduct involved repeated actions or was an isolated incident; and
    (5)    the harm was the result of intentional malice, trickery, or deceit, or
    mere accident.
    Id. Here, four
    of these factors weigh against the Tobacco Companies.
    As to the first factor, Kerrivan’s COPD is a physical injury, causing
    Kerrivan’s overall deteriorating health and resulting in a terminal condition. This
    factor weighs in his favor.
    21
    Case: 18-13045       Date Filed: 03/24/2020       Page: 22 of 31
    On the second factor, the evidence established the Tobacco Companies’
    indifference and reckless disregard for the health and safety of smokers like
    Kerrivan. The Tobacco Companies knew that cigarettes containing nicotine were
    addictive and caused serious health conditions. Instead of admitting these facts,
    they concealed and openly denied them. Further, they coordinated attacks on the
    source of health warnings, intentionally casting doubt on the connection between
    cigarettes and detriment to health. These actions demonstrate a high level of
    indifference and reckless disregard for the health and safety of smokers, including
    Kerrivan. Thus, this factor weighs in Kerrivan’s favor.
    The fourth factor9 looks at whether the Tobacco Companies’ conduct was
    repeated and not an isolated incident. The Tobacco Companies repeatedly denied
    the harmful health effects of cigarettes despite possessing knowledge of these
    effects decades before acknowledging them. Accordingly, this factor also weighs
    in Kerrivan’s favor.
    Regarding the fifth factor, the evidence demonstrated that the Tobacco
    Companies’ conduct was intentional. The Tobacco Companies knew that
    cigarettes were addictive and linked to serious health conditions. Despite this
    knowledge, they not only concealed and denied the adverse health effects of
    9
    The district court concluded that the third factor did not weigh in Kerrivan’s favor
    because “[t]here was no evidence that Kerrivan was financially vulnerable.” Doc. 174 at 10.
    Because neither party challenges it, we accept the district court’s analysis of this factor.
    22
    Case: 18-13045     Date Filed: 03/24/2020   Page: 23 of 31
    smoking, but they also deliberately designed their product to deliver higher doses
    of nicotine to smokers, all the while making cigarettes milder and more inhalable,
    and therefore more addictive. They developed “filtered” and “light” products to
    deceive smokers into believing these products were safer. This factor, too, weighs
    in Kerrivan’s favor.
    In short, four of the five factors for evaluating reprehensibility weigh against
    the Tobacco Companies. See Myers v. Cent. Fla. Invs., Inc., 
    592 F.3d 1201
    , 1219
    (11th Cir. 2010) (“While there is no requirement that a certain number of the five
    State Farm factors be present in order to support a finding of reprehensibility,
    reprehensibility grows more likely as more factors are present.”). The Tobacco
    Companies’ conduct was particularly reprehensible; the first—and most
    important—guidepost weighs heavily in Kerrivan’s favor.
    2.     Disparity Between Harm and Award
    “The second and perhaps most commonly cited indicium of an unreasonable
    or excessive punitive damages award is its ratio to the actual harm inflicted on the
    plaintiff.” 
    Gore, 517 U.S. at 580
    . For this second guidepost, a “comparison
    between the compensatory award and the punitive award is significant.”
    Id. at 581.
    Courts often employ a ratio of punitive to compensatory damages to test the
    reasonableness of the punitive damages award. See State 
    Farm, 538 U.S. at 425
    .
    23
    Case: 18-13045     Date Filed: 03/24/2020    Page: 24 of 31
    The Tobacco Companies argue that the ratio of punitive damages to compensatory
    damages confirms the excessiveness of the punitive damages award.
    Here, the punitive damages award was $25.3 million, and the compensatory
    damages award was $15.8 million, making the ratio of punitive damages to
    compensatory damages approximately 1.6:1. This ratio is significantly lower than
    ratios that courts have accepted as satisfying due process. See, e.g., Bogle v.
    McClure, 
    332 F.3d 1347
    , 1361-62 (11th Cir. 2003) (noting that punitive to
    compensatory ratio “in the neighborhood of 4:1” does not violate due process);
    R.J. Reynolds Tobacco Co. v. Martin, 
    53 So. 3d 1060
    , 1072 (Fla. Dist. Ct. App.
    2010) (concluding that punitive to compensatory ratio of 7.58:1 did not “offend
    due process”). So, we cannot say that the 1.6:1 ratio established that the punitive
    damages award was excessive.
    The Tobacco Companies argue that the 1.6:1 ratio is not the correct ratio to
    consider due to the jury’s apportionment of fault. The appropriate ratios are closer
    to 2:1 for both companies, they contend, because we should look only to the
    amount of compensatory and punitive damages awarded against each defendant.
    But even assuming the Tobacco Companies are correct that these are the relevant
    ratios, the punitive damages award still would not be unreasonable. The Supreme
    Court has explained that there are “no rigid benchmarks that a punitive damages
    award may not surpass,” but “[s]ingle-digit multipliers are more likely to comport
    24
    Case: 18-13045     Date Filed: 03/24/2020   Page: 25 of 31
    with due process, while still achieving the State’s goals of deterrence and
    retribution.” State 
    Farm, 538 U.S. at 425
    ; see 
    Gore, 517 U.S. at 580
    -81
    (discussing history of courts awarding double, treble, or quadruple damages). The
    multipliers here are in the low single digits. We have upheld considerably larger
    ratios of punitive to compensatory damages. See McGinnis v. Am. Home Mortg.
    Servicing, Inc., 
    901 F.3d 1282
    , 1290 (11th Cir. 2018) (discussing decisions in
    which we upheld punitive damages awards with ratios of 5.5:1, 9.2:1, and 4:1).
    For these reasons, the second guidepost also weighs in Kerrivan’s favor.
    3.     Difference Between Damages and Civil Penalties Authorized
    or Imposed in Comparable Cases
    The final guidepost considers “the available civil and criminal penalties the
    state provides for” the Tobacco Companies’ misconduct to determine whether they
    had notice that they could be ordered to pay the amount awarded. Johansen v.
    Combustion Eng’g, Inc., 
    170 F.3d 1320
    , 1337 (11th Cir. 1999). “[A] reviewing
    court engaged in determining whether an award of punitive damages is excessive
    should accord substantial deference to legislative judgments concerning
    appropriate sanctions for the conduct at issue.” 
    Gore, 517 U.S. at 583
    (internal
    quotation marks omitted). This factor, however, “is accorded less weight in the
    reasonableness analysis than the first two guideposts.” Kemp v. Am. Tel. & Tel.
    Co., 
    393 F.3d 1354
    , 1364 (11th Cir. 2004).
    25
    Case: 18-13045     Date Filed: 03/24/2020    Page: 26 of 31
    The Tobacco Companies ask us to compare the awards of punitive damages
    to the civil penalties authorized for willful violations of Florida’s Deceptive and
    Unfair Trade Practices Act. See Fla. Stat. § 501.2075. They observe that the Act
    authorizes a maximum penalty of $10,000 for each willful violation,
    id., far less
    than the punitive damages awarded here. But the Tobacco Companies fail to
    recognize that violators of the Act are subject to a maximum $10,000 penalty “for
    each [willful] violation.”
    Id. (emphasis added).
    So, the relevant comparison
    would be the total penalties authorized for each of the willful violations the
    Tobacco Companies committed over Kerrivan’s nearly five decades as a smoker
    that contributed to his harm. But even assuming that this guidepost favors the
    Tobacco Companies, it does not, in the light of the first two guideposts, compel the
    conclusion that the punitive damages awarded here were unconstitutionally
    excessive.
    Because the Gore guideposts weigh in Kerrivan’s favor, we conclude that
    the punitive damages award is not unconstitutionally excessive. The district court
    correctly denied the Tobacco Companies’ motion for judgment as a matter of law
    on the constitutionality of the punitive damages award.
    C.    The District Court Did Not Err by Submitting Kerrivan’s Fraud Claims
    to the Jury.
    The Tobacco Companies argue that the district court should not have
    allowed Kerrivan’s fraud-based claims to go to the jury because the evidence was
    26
    Case: 18-13045     Date Filed: 03/24/2020    Page: 27 of 31
    insufficient for a reasonable jury to find that Kerrivan detrimentally relied on their
    concealment of material information about the risks of smoking. We find, to the
    contrary, that the evidence supported an inference of detrimental reliance by
    Kerrivan. The district court correctly denied the Tobacco Companies’ renewed
    motion for judgment as a matter of law.
    Engle progeny plaintiffs need not demonstrate that they relied on specific
    statements from cigarette companies to establish detrimental reliance for fraud-
    based claims under Florida law. See, e.g., Philip Morris USA Inc. v. McCall, 
    234 So. 3d 4
    , 14 (Fla. Dist. Ct. App. 2017) (explaining that in an Engle case a
    fraudulent concealment claim need not be limited to reliance on a particular
    statement); Philip Morris USA, Inc. v. Duignan, 
    243 So. 3d 426
    , 439 (Fla. Dist. Ct.
    App. 2017) (holding that an Engle progeny plaintiff was not required to prove
    detrimental reliance on a specific statement). “Florida law permits an Engle-
    progeny jury to infer reliance based on evidence that the plaintiff was exposed to
    the disinformation campaign and harbored a misapprehension about the health
    effects and/or addictive nature of smoking.” Cote v. R.J Reynolds Tobacco Co.
    
    909 F.3d 1094
    , 1108 (11th Cir. 2018) (collecting cases). To decide whether the
    evidence was sufficient to raise an inference of detrimental reliance, we must
    determine “[w]hether, considering all evidence and drawing all reasonable
    inferences in favor of [Kerrivan], any reasonable juror could have inferred that [he]
    27
    Case: 18-13045     Date Filed: 03/24/2020   Page: 28 of 31
    was exposed to [the Tobacco Companies’] decades-long, pervasive disinformation
    campaign and was accordingly confused regarding the health effects or addictive
    nature of smoking cigarettes such that [he] may have behaved differently had [he]
    known the true facts.”
    Id. The jurors
    in this case heard evidence about the tobacco industry’s sustained
    and pervasive disinformation campaign. Kerrivan also testified about his exposure
    to cigarette advertisements and that the advertisements influenced his decisions
    about which cigarettes to smoke, such as his decision to switch to filtered
    cigarettes to “cut out the tar and nicotine,” Doc. 93 at 89—the very claim the
    tobacco industry made in marketing filtered cigarettes. Further, Kerrivan testified
    that he switched to Marlboro Lights in an attempt to quit smoking but instead
    ended up smoking more packs of cigarettes per day, the exact outcome the tobacco
    industry sought in making lighter cigarettes. He also testified that, had he known
    had bad cigarettes were for him or how addictive they were, he never would have
    started smoking and probably would have quit sooner. This evidence is sufficient
    to sustain an inference of detrimental reliance.
    The Tobacco Companies contend that, because Kerrivan introduced no
    evidence that he heard or saw any particular advertisement that misled him, the
    Florida First District Court of Appeals’ decision in R.J. Reynolds Tobacco Co. v.
    Whitmire, 
    260 So. 3d 536
    (Fla. Dist. Ct. App. 2018), forecloses recovery on his
    28
    Case: 18-13045     Date Filed: 03/24/2020   Page: 29 of 31
    fraud claims. This argument flies in the face of our previous observation that
    “Florida courts have consistently held that Engle-progeny plaintiffs are not
    required to show reliance on a specific statement.” 
    Cote, 909 F.3d at 1108
    .
    In Cote, we explained that the “unique circumstances underlying Engle-
    progeny fraudulent concealment claims” has caused the Florida courts to “permit[]
    an Engle-progeny jury to infer reliance based on evidence that the plaintiff was
    exposed to the disinformation campaign and harbored a misapprehension about the
    health effects and/or addictive nature of smoking.”
    Id. (collecting cases).
    The
    Tobacco Companies maintain that Whitmire, which was decided after Cote,
    changed Florida law such that “the only proof that will satisfy the detrimental
    reliance requirement is evidence that the smoker read, saw, or heard a misleading
    statement.” Reply Br. at 20. We are not persuaded.
    Generally, we are bound by a previous decision of this court interpreting
    state law unless it is overruled by the court sitting en banc or “subsequent decisions
    of the United States Supreme Court or the Florida courts cast doubt on our
    interpretation of state law.” Hattaway v. McMillian, 
    903 F.2d 1440
    , 1445 n.5 (11th
    Cir. 1990). We reject the Tobacco Companies’ argument because Whitmire casts
    no doubt on Cote’s interpretation of Florida law. Whitmire merely explained that a
    jury may draw an inference of reliance on misleading advertisements only if the
    plaintiff “connect[s] [his] smoking to the false information disseminated by the
    29
    Case: 18-13045     Date Filed: 03/24/2020    Page: 30 of 31
    tobacco companies.” 
    See 260 So. 3d at 540
    . The appellee in Whitmire was the
    husband of the decedent smoker.
    Id. at 537.
    At trial, he provided no evidence that
    connected his wife’s smoking to the false information disseminated by the tobacco
    industry.
    Id. at 539.
    Instead, the evidence presented at trial displayed a lack of
    interest in cigarette advertisements:
    Appellee testified that he did not know whether the decedent was
    influenced by cigarette advertisements and that they had never
    discussed any statements by tobacco companies; Appellee’s son
    testified that he could not recall the decedent ever expressing interest in
    a statement from a tobacco company; and Appellee’s sister-in-law
    testified that she had never heard the decedent mention a cigarette
    advertisement. While Appellee testified that he was “sure” the
    decedent saw cigarette advertisements on television, he also testified
    that he did not know if she saw any “statements” from any tobacco
    companies.
    Id. at 539-40.
    Because no evidence connected the decedent’s smoking to any false
    information distributed by the tobacco industry, the court in Whitmire concluded
    that the appellee “failed to present adequate evidence as a matter of law that the
    decedent relied on fraudulent statements.”
    Id. at 541.
    This decision did not change
    Florida law concerning the circumstances in which a jury can infer reliance in
    Engle progeny cases. The requirements remain the same: that the plaintiff was
    exposed to the disinformation campaign and harbored a misapprehension about the
    health effects and/or addictive nature of smoking.
    Kerrivan satisfied this requirement: not only did he present evidence that he
    was exposed throughout his life to the Tobacco Companies’ large-scale advertising
    30
    Case: 18-13045       Date Filed: 03/24/2020       Page: 31 of 31
    campaign, but he also testified that his decisions were influenced by the
    campaign’s contents. From this evidence, a reasonable jury could infer that
    Kerrivan would have quit smoking earlier had he known the true facts about the
    health risks of the cigarettes that he smoked. 10
    Therefore, the district court did not err in submitting Kerrivan’s fraud claims
    to the jury. For the same reasons, it properly denied the Tobacco Companies’
    renewed motion for judgment as a matter of law.
    IV.     CONCLUSION
    For the reasons set forth above, we affirm the district court’s denials of the
    Tobacco Companies’ motions for judgment as a matter of law and for a new trial
    or remittitur.
    AFFIRMED.
    10
    The Tobacco Companies also argue that Kerrivan could not have detrimentally relied
    on their misinformation because he had knowledge of the dangers of smoking from having
    observed his mother’s smoking and his father’s imploring her to quit. Even if Kerrivan’s
    mother’s smoking made him generally aware of the health risks of smoking, his testimony
    demonstrated that he did not fully comprehend all the dangers of smoking; for example, that
    filtered and light cigarettes would further his addition rather than helping him to quit. See Philip
    Morris USA, Inc. v. Naugle, 
    103 So. 3d 944
    , 947 (Fla. Dist. Ct. App. 2012) (affirming finding of
    reliance where the smoker “was aware that smoking could have been dangerous to her health”).
    31