Third District Court of Appeal
State of Florida
Opinion filed December 16, 2020.
________________
No. 3D18-0958
Lower Tribunal No. 12-29000
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Joyce Hardin, etc.,
Appellant/Cross-Appellee,
vs.
R.J. Reynolds Tobacco Company,
Appellee/Cross-Appellant,
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
The Ferraro Law Firm, P.A., and Allan B. Kaiser, and Dick M. Ortega, and
Juan P. Bauta, II, for appellant/cross-appellee.
King & Spalding, LLP, and Scott Michael Edson (Washington, DC), and
William L. Durham, II (Atlanta, GA), for appellee/cross-appellant.
Before LINDSEY, HENDON, and GORDO, 1 JJ.
1
Judge Gordo did not participate in oral argument.
LINDSEY, J.
ON MOTION FOR REHEARING
We treat Appellant’s motion for rehearing as a motion for clarification. We
grant said motion, withdraw our previously issued opinion, and substitute the
following in its place.
This is the second appeal before this Court in this Engle progeny case.
Appellant/Cross-Appellee Joyce Hardin appeals from an order granting a directed
verdict on her punitive damages claims in favor of Appellee/Cross-Appellant R.J.
Reynolds Tobacco Company due to insufficient evidence. Because Ms. Hardin
failed to present legally sufficient evidence that R.J. Reynolds’s misconduct was
related to her product liability claims and was a substantial cause of Thomas
Hardin’s COPD and death, we affirm. 2
I. BACKGROUND
In December 2007, Thomas B. Hardin commenced an Engle progeny personal
injury action to recover damages for contracting COPD/emphysema 3 after smoking
2
In its cross-appeal, R.J. Reynolds argues that should this Court reverse the directed
verdict, R.J. Reynolds would, in the alternative, be entitled to a directed verdict
pursuant to the post-1999 version of section 768.73(2), Florida Statutes. Because
we affirm the main appeal, we need not address the alternative ground for affirmance
raised in R.J. Reynolds’s cross-appeal.
3
The parties use COPD (chronic obstructive pulmonary disease) and emphysema
interchangeably.
2
cigarettes manufactured by R.J. Reynolds, American Tobacco Company, and Brown
& Williamson (collectively, the “Reynolds Companies”), all of which are now
owned by R.J. Reynolds. Mr. Hardin passed away in February 2012, and his
window, Joyce Hardin (“Plaintiff”), filed the underlying wrongful death action
asserting non-intentional product liability claims for strict liability and negligence
and intentional tort claims for fraud by concealment and conspiracy to commit fraud.
Plaintiff later filed a motion to amend to seek punitive damages for her intentional
and non-intentional tort claims. The trial court concluded that punitive damages
were not recoverable for the non-intentional tort claims and only allowed Plaintiff
to seek punitive damages for her intentional tort claims.
Following a three-week trial, the jury returned a verdict in Plaintiff’s favor on
her strict liability and negligence product liability claims but returned a defense
verdict on Plaintiff’s intentional tort claims. The jury awarded a total of $776,000
in compensatory damages and apportioned 87% of the fault to Mr. Hardin, based on
his own comparative negligence, and 13% to R.J. Reynolds. Accordingly, the trial
court entered final judgment for Plaintiff in the amount of $100,800.
Plaintiff timely appealed the trial court’s denial of her request to seek punitive
damages on her non-intentional product liability claims. Based on the Florida
Supreme Court’s recently decided decision in Soffer v. R.J. Reynolds Tobacco
Company,
106 So. 3d 456 (Fla. 2012), this Court reversed and remanded “for a new
3
trial limited to the issue of punitive damages for Hardin’s non-intentional tort
claims.” Hardin v. R.J. Reynolds Tobacco Co.,
208 So. 3d 291, 292 (Fla. 3d DCA
2016).
During the second trial, the primary evidence offered in support of punitive
damages was the videotaped deposition testimony of Robert Proctor, Ph.D., a
historian and expert on the tobacco industry. Dr. Proctor, who admitted he did not
know any details about Mr. Hardin, mainly presented generic evidence of the
tobacco industry’s knowledge that cigarettes were a cause of lung cancer. And
despite this knowledge, the cigarette companies mounted a campaign of mass
deception and continued selling their cancer-causing cigarettes. Dr. Proctor also
testified that the tobacco companies knew their cigarettes were addictive due to the
nicotine and that they made their cigarettes easier to inhale.
Plaintiff also presented thirteen pages of deposition testimony from Mr.
Hardin, giving a general outline of his smoking history. Mr. Hardin’s testimony was
that he initially smoked various cigarette brands based on what was available to him.
In 1958, Mr. Hardin began smoking Kool cigarettes, manufactured by Brown &
Williamson, which he continued to smoke for over 40 years, until he quit in 2004 or
2005. Mr. Hardin further testified that he started smoking Kools because he liked
the taste. When asked if he saw any advertising that prompted him to switch to
Kools, Mr. Hardin answered that he could not remember any.
4
At the conclusion of the trial, the court informed the jury that because Mr.
Hardin was an Engle class member, the following findings from the Engle class
action were read to the first jury:
1. Smoking cigarettes causes chronic obstructive
pulmonary disease, or COPD;
2. Cigarettes containing nicotine are addictive;
3. Defendant R.J. Reynolds Tobacco Company was
negligent;
4. Defendant R.J. Reynolds Tobacco Company placed
cigarettes on the market that were defective or
unreasonably dangerous.
See Engle v. Liggett Group, Inc.,
945 So. 2d 1246, 1276 (Fla. 2006) (holding that
with respect to compensatory damages, the above findings in favor of the Engle
Class can stand). Importantly, the trial court explained that “[t]hese findings are not
applicable to this case now, but are provided solely for context.” See Soffer, 187
So. 3d at 1225 (“[T]he individual progeny plaintiffs are not bound by the prior
procedural posture of Engle when pleading punitive damages . . . .” (emphasis
added)).
The trial court also read four findings made by the first jury in this case, which
were “binding” and could “not be denied or questioned.”:
1. Thomas Hardin was addicted to cigarettes containing
nicotine and such addiction was a legal cause of his
chronic obstructive pulmonary disease and death.
5
2. Joyce Hardin sustained damages for the loss of her
husband, Thomas Hardin’s companionship and
protection, and for her mental pain and suffering as a
result of Thomas Hardin’s death. Those damages
amounted to $776,000.
[3]. The first jury found that Mr. Hardin was 87 percent at
fault for causing his own COPD and death and that R.J.
Reynolds was 13 percent at fault for causing Mr.
Hardin’s COPD and death.
4. The jury further found that Mr. Hardin did not rely, to
his detriment, on any statement made by R.J. Reynolds
or any other tobacco company.
Crucial to our analysis in this case are the following jury instructions on
punitive damages: 4
Punitive damages are warranted against R.J. Reynolds if
you find by clear and convincing evidence that R.J.
Reynolds was guilty of intentional misconduct or gross
negligence related to Plaintiff’s claims of defective
product and negligence, which was a substantial cause of
Thomas Hardin’s COPD and death.
The court further instructed the jury that it could “not seek to punish R.J. Reynolds
for any harm suffered by any individuals other than Thomas B. Hardin.” Moreover,
4
Cf. Fla. Stand. Jury Instr. (Civil) PD 1(b)(1) (“If you find for (claimant) and
against (defendant), and you also find that clear and convincing evidence shows
that the conduct of (defendant) was a substantial cause of [loss] [injury] [or]
[damage] to (claimant) and that such conduct warrants punitive damages under
the standards I have given you, then in your discretion you may determine
punitive damages are warranted against (defendant)”).
6
“R.J. Reynolds cannot be punished merely for manufacturing, selling, or advertising
cigarettes.”
The jury ultimately deadlocked, writing the following note during
deliberations: “We do not think that we can reach a decision in this case.” At this
point, R.J. Reynolds renewed several motions for directed verdict, which were
initially submitted after Plaintiff rested her case-in-chief. In its motion for directed
verdict due to insufficient evidence, R.J. Reynolds argued that Plaintiff had failed to
introduce any evidence connecting punishable misconduct to Mr. Hardin. More
specifically, R.J. Reynolds argued that Plaintiff had “failed to carry her burden of
proving–let alone by clear and convincing evidence–that R.J. Reynolds engaged in
sanctionable misconduct that caused Mr. Hardin’s COPD and death.”
The court delivered an Allen charge to the jury 5 and proceeded to hear
extensive arguments on R.J. Reynolds’s motion for directed verdict while the jury
continued deliberations. R.J. Reynolds asserted that based on the jury instructions,
the jury could only award punitive damages for misconduct that was a substantial
cause of the harm to Mr. Hardin—specifically COPD—but the generic evidence
5
An Allen charge “allows a jury to continue deliberations even after it has
announced its inability to do so, where there is a reasonable basis to believe a verdict
is possible, while cautioning jurors that they should not abandon their views just to
get a verdict or to accommodate the majority.” Thomas v. State,
748 So. 2d 970,
977 (Fla. 1999); see also Allen v. United States,
164 U.S. 492 (1896).
7
presented to the jury was about lung cancer. R.J. Reynolds also argued that there
was a lack of evidence concerning the Kool cigarettes that Mr. Hardin smoked for
over 40 years. In short, it was R.J. Reynolds’s position that although Plaintiff
presented evidence of misconduct, there was insufficient evidence connecting the
misconduct to Mr. Hardin.
In response, Plaintiff focused on the evidence of misconduct but not on linking
that misconduct to Mr. Hardin. For instance, plaintiff argued that it did not matter
whether Dr. Proctor said anything about COPD 6 because once it was established that
“cigarettes could cause harm, whether it’s ringworm or cancer, you have an
obligation to tell your consumers that there’s a danger in this defective product.”
Plaintiff also repeatedly argued that “all we have to show” is intentional misconduct.
When asked directly by the trial court “[w]hat have you shown that Mr. Hardin and
Mrs. Hardin are deserving of punitive damages[,]” counsel for plaintiff answered: “I
don’t have to show anything other than Mr. Hardin dies from smoking their defective
cigarettes. That’s it.”
6
Although not mentioned at the hearing, Dr. Proctor’s hours long testimony did
include a few general references to COPD/emphysema. Dr. Proctor explained that
beginning in the 1950s, there was a large amount of new scientific evidence released
to the public about cigarette smoking and emphysema. And in 1964, a Surgeon
General’s report on COPD, emphysema, chronic bronchitis received wide media
coverage. Dr. Proctor also explained that by the 1960s, the tobacco industry
recognized that they were in the nicotine business and an internal goal was to “make
a safer cigarette by producing addiction without the unattractive side effects of
cancer and emphysema.”
8
After the jury was again unable to come to a decision, the court granted R.J.
Reynolds’s motion for a directed verdict, finding that “no reasonable jury under the
circumstances of this case could find that punitive damages were warranted.”
Plaintiff moved for rehearing, raising many of the same arguments as before. The
trial court conducted a hearing and once more considered the parties’ arguments,
observing that this is a “test case” about whether “generic normal Engle evidence,
with nothing, zero frills attaching it to the plaintiff” is enough to send the case to the
jury on punitive damages. Plaintiff again focused on the evidence of misconduct.
And R.J. Reynolds again maintained that Plaintiff’s evidence of misconduct had
nothing to do with Mr. Hardin specifically. The court agreed and denied Plaintiff’s
motion, stating that “[i]t’s hard to imagine a case within Engle that is less favorable
for the plaintiff on punitive damages.” This timely appeal and cross-appeal
followed.
II. STANDARD OF REVIEW
This Court reviews a trial court’s ruling on a motion for directed verdict de
novo. See Kopel v. Kopel,
229 So. 3d 812, 819 (Fla. 2017). “[A]n appellate court
reviewing the grant of a directed verdict must view the evidence and all inferences
of fact in the light most favorable to the nonmoving party , and can affirm a directed
verdict only where no proper view of the evidence could sustain a verdict in favor
of the nonmoving party.” Banco Espirito Santo Intern., Ltd. v. BDO Intern., B.V.,
9
979 So. 2d 1030, 1032 (Fla. 3d DCA 2008) (quoting Owens v. Publix Supermarkets,
Inc.,
802 So. 2d 315, 329 (Fla. 2001)); see also De La Torre v. Crete Carrier Corp.,
786 So. 2d 1202, 1203 (Fla. 3d DCA 2001) (“A motion for directed verdict should
not be granted unless the trial court, after viewing the evidence in the light most
favorable to the non-moving party, determines that no reasonable jury could render
a verdict for the non-moving party.” (quoting Lipsig v. Ramlawi,
760 So. 2d 170,
175 (Fla. 3d DCA 2000))).
III. ANALYSIS
As an initial matter, we highlight the unique procedural posture in this case.
Ordinarily, the same jury would hear the evidence pertaining to both compensatory
and punitive damages. In other words, the same jury that awarded compensatory
damages would also decide whether the conduct giving rise to compensatory
damages was deserving of punishment. But here, due to the fact that the case was
remanded for a new trial on the issue of punitive damages following Plaintiff’s first
appeal, there were two separate juries, each considering the evidence presented
during their corresponding trials. Our review of the record is limited to the evidence
that was before the second jury on punitive damages.
Plaintiff’s primary argument below and on appeal is that there was sufficient
evidence for a reasonable jury to find that R.J. Reynolds’s misconduct was
intentional or grossly negligent. We agree, but this is not in dispute. As R.J.
10
Reynolds freely admitted during the hearing on its motion for directed verdict:
“Plaintiff has . . . done a lot to try to show gross negligence or intentional
misconduct, and that was their entire case . . . .” But, as R.J. Reynolds went on to
explain, the issue is whether Plaintiff presented sufficient evidence “to connect that
misconduct to the underlying claims that specifically caused harm to Mr. Hardin.”
The jury instructions below required Plaintiff to present evidence not only that
R.J. Reynolds was guilty of intentional misconduct or gross negligence, but also that
such misconduct or gross negligence was related to Plaintiff’s product liability
claims and was a substantial cause of Mr. Hardin’s COPD and death. This is
consistent with the Engle caselaw, which requires an individualized determination
with respect to punitive damages. See Philip Morris USA, Inc. v. Douglas,
110 So.
3d 419, 424 (Fla. 2013) (explaining that in Engle, the Florida Supreme Court
“reversed the class-wide punitive damages award as premature because, though the
Phase I jury decided the Engle defendants’ common liability to the class under
certain claims, it did not decide the plaintiff-specific elements of those claims and,
therefore, ‘did not determine whether the defendants were liable to anyone’”
(quoting Engle,
945 So. 2d at 1262-63)).
Plaintiff failed to put forth sufficient evidence to satisfy the language requiring
a link between R.J. Reynolds’s misconduct and Plaintiff’s claims and Mr. Hardin’s
injuries. Plaintiff repeatedly argues there was sufficient evidence that R.J.
11
Reynolds’s misconduct was “intentional” or “grossly negligent” within the meaning
of section 768.72, Florida Statutes. While this may be true, what is lacking here is
sufficient evidence establishing that this misconduct was related to Plaintiff’s claims
and a substantial cause of Mr. Hardin’s COPD and death. The only evidence offered
on this issue was Dr. Proctor’s testimony, which as set forth below, is insufficient.
Pursuant to section 768.72(2), “[a] defendant may be held liable for punitive
damages only if the trier of fact, based on clear and convincing evidence, finds that
the defendant was personally guilty of intentional misconduct or gross negligence.”
Notably absent from section 768.72, however, is the language at issue in this case
requiring that the misconduct be related to Plaintiff’s claims and a substantial cause
of Mr. Hardin’s COPD and death.
Based on our careful review of the record, we conclude that Plaintiff failed to
present sufficient evidence such that a reasonable jury could find that R.J.
Reynolds’s misconduct was related to Plaintiff’s claims and was a substantial cause
of his COPD and death. Plaintiff’s key witness, Dr. Proctor, testified that he knew
nothing about Mr. Hardin and that his expert testimony was not specific to any
particular smoker:
Q. Dr. Proctor, in preparation for your testimony in this
case, have you read any depositions of family members of
Thomas Hardin, the decedent?
A. No.
12
Q. Did you read Thomas Hardin’s deposition that was
taken before his death?
A. No.
Q. Have you reviewed any medical records in this case?
A. No.
Q. Have you reviewed any expert witness depositions in
this case?
A. No.
Q. Have you talked to any of Plaintiff’s experts?
A. No.
Q. Have you talked to any family members of Thomas
Hardin?
A. No.
....
Q. Do you believe that your preparation for this case is
lacking in any way to testify as an expert in this case?
A. No.
Q. Can you explain that?
A. Well, I’m not an expert on the Hardin family. I am an
expert on the history of cigarettes, cigarette design,
cigarette industry conduct or misconduct. I am a historian
in the sense of what happened to everyone, not what
happened to one individual family.
13
Q. Presently, as an expert in Engle progeny cases, do you
offer testimony specific to any particular smoker at any
time?
A. No.
Consistent with his answers above, Dr. Proctor gave generic testimony about
the tobacco industry’s misconduct, mostly as it related to lung cancer and the
industry’s campaign of mass deception. Dr. Proctor never testified that R.J.
Reynolds’s misconduct was a substantial cause of Mr. Hardin’s COPD or death.
Similar to what was argued below, Plaintiff claims “that the specific lung
disease Mr. Hardin contracted was immaterial, since the evidence showed that the
Reynolds Companies had knowledge that their products contained deadly defects
that caused lung disease, and despite this knowledge, chose to continue selling them
without correcting those defects.” This position fails to establish what is required
by the jury instructions—evidence not simply of misconduct but of misconduct
“related to Plaintiff’s claims of defective product and negligence, which was a
substantial cause of Thomas Hardin’s COPD and death.”
Plaintiff cites a handful of cases in which findings of punitive damages were
affirmed on appeal where she claims the evidence “was nearly identical” to the
evidence presented below: Owens-Corning Fiberglas Corp. v. Ballard,
749 So. 2d
483 (Fla. 1999); R.J. Reynolds Tobacco Co. v. Townsend,
90 So. 3d 307 (Fla. 1st
DCA 2012); R.J. Reynolds Tobacco Co. v. Martin,
53 So. 3d 1060 (Fla. 1st DCA
14
2010). Plaintiff also cites the following two cases as supplemental authority: R.J.
Reynolds Tobacco Co. v. Ledo,
274 So. 3d 416 (Fla. 3d DCA 2019); Cote v. Philip
Morris USA, Inc.,
400 F. Supp. 3d 1295 (M.D. Fla. 2019).
We are not persuaded that these cases are applicable under the unique
circumstances present here. The juries that awarded compensatory damages in those
cases were the same juries that determined entitlement to punitive damages. In each
case, the jury first determined the tortious conduct that harmed the plaintiff and then
decided whether that conduct warranted punishment. Unlike here, the juries were
not merely presented with generic evidence of misconduct. For instance, in Ballard,
a product liability action involving Kaylo, a carcinogenic, asbestos-containing
product, the jury first determined that the defendant manufacturer was negligent and
strictly liable for selling Kaylo. The same jury then determined that the plaintiff was
entitled to punitive damages based on evidence showing defendant “knew of the
deleterious health risks associated with Kaylo for decades, yet consciously made a
purely economic decision not to warn its consumers, change its process, remove the
asbestos, and/or replace the fibers with readily available, asbestos-free fibers. As a
result of this conduct, [defendant] was exposed to Kaylo at several job sites and
developed terminal lung cancer.” Owens-Corning Fiberglas Corp. v. Ballard,
739
So. 2d 603, 607 (Fla. 4th DCA 1998), approved,
749 So. 2d 483 (Fla. 1999).
15
Moreover, none of the cases cited has any discussion on jury instructions
similar to the instructions in this case. But even if there were such a discussion, it is
clear that in these cases there was a direct link between the intentional wrongdoing
by the defendant and the specific injuries to the plaintiff. In Cote, for example, the
jury returned a verdict in favor the plaintiff on each of her theories of liability and
further found that the plaintiff was entitled to punitive damages for her intentional
tort claims (fraudulent concealment and conspiracy to conceal). 400 F. Supp. 3d at
1301. The court denied Philip Morris’s motion for judgment as a matter of law on
the punitive damages claim because there was “ample independent evidence
showing that Phillip Morris engaged in intentional misconduct.” Id. at 1313. The
court then gave several specific examples of the evidence of misconduct “and how
it related to [plaintiff.]” Id. at 1313-14 (emphasis added).
Similarly, Townsend and Martin also involved extensive evidence that
smokers had determinately relied on fraudulent statements and that the misconduct
associated with that fraudulent behavior warranted punitive damages. In other
words, the misconduct in those cases was related to the plaintiffs’ intentional tort
claims. See Townsend,
90 So. 3d at 313 (“The record of this case . . . is replete with
evidence of the decades-long, wanton and intentional conduct by RJR in vigorously,
persuasively marketing to the public (including young people) a product the
company knew was addictive; willfully concealing the serious health hazards posed
16
by cigarette smoking; affirmatively deceiving the public into believing that
cigarettes may not be harmful; and refusing to remove certain ingredients in
cigarettes (such as nicotine) that the company counted on to sustain sales.”); Martin,
53 So. 3d at 1069 (affirming jury’s fraud findings and concluding that “the record
contains abundant evidence from which the jury could infer Mr. Martin’s reliance
on pervasive misleading advertising campaigns”).
Here, by contrast, the first jury returned a defense verdict on Plaintiff’s
intentional tort claims, and the second jury was bound by the first jury’s finding that
Mr. Hardin did not rely on any statement made by R.J. Reynolds or any other tobacco
company. Consequently, although Dr. Proctor presented similar evidence that
tobacco companies engaged in a campaign of mass deception and fraud, this generic
evidence of misconduct was not related to Plaintiff’s surviving claims, which were
product liability claims and not intentional tort claims.
IV. CONCLUSION
Because Plaintiff failed to present sufficient evidence that R.J. Reynolds was
engaged in misconduct that was related to her product liability claims and that was
a substantial cause of Mr. Hardin’s COPD and death, we affirm the trial court’s order
granting a directed verdict in favor of R.J. Reynolds due to insufficient evidence.
Affirmed.
17
