Mary Sowers v. R.J. Reynolds Tobacco Company

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11901
________________________
D.C. Docket No. 3:09-cv-11829-WGY-JBT
MARY SOWERS,
as personal representative of the Estate of Charles Sowers,
Plaintiff-Appellee
Cross-Appellant,
versus
R.J. REYNOLDS TOBACCO COMPANY,
individually and as successor by merger to the Brown and
Williamson Tobacco Corporation and The American
Tobacco Company,
Defendant-Appellant
Cross-Appellee,
PHILIP MORRIS USA, INC.,
et al.,
Defendants.
_______________________
Appeals from the United States District Court
for the Middle District of Florida
_______________________
(September 15, 2020)
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Before BRANCH, TJOFLAT, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Charles Sowers smoked one to three packs of cigarettes a day for about fifty
years, and it killed him. He died of lung cancer caused by smoking cigarettes.
Mary Sowers, his widow and the representative of his estate, sued the
manufacturer of the cigarettes, R.J. Reynolds, under Florida’s wrongful death
statute. A jury found the company liable for his death and awarded compensatory
damages, which resulted in a judgment of $2.125 million.
R.J. Reynolds has appealed, seeking a new trial on two grounds, one
involving an evidentiary ruling and the other involving some statements Mrs.
Sowers’ attorney made in closing argument. We find no merit in either ground.
She has cross-appealed, seeking a new trial on the issue of punitive damages,
which was not presented to the jury at the first trial. R.J. Reynolds does not
dispute that Mrs. Sowers is entitled to a new trial on punitive damages but
contends that if there is one it will have to include the liability issue, which would
put at risk all of the compensatory damages she was awarded in the first trial. We
disagree that the trial she is entitled to receive on the punitive damages issue will
open up the liability and compensatory damages judgment that she has already
obtained in the first trial.
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And, as we will explain, unless it is successful in getting our judgment
vacated or reversed, R.J. Reynolds will have to pay Mrs. Sowers the compensatory
damages award, plus any applicable interest, promptly after our mandate issues
instead of delaying payment until after the trial on punitive damages and any
resulting appeal from the judgment in that trial is completed.
I. BACKGROUND: THE ENGLE CASE
This is an “Engle progeny” case, the name insiders give to the originating
class action lawsuit with a lead plaintiff named Engle. See Engle v. Liggett Group,
Inc., 945 So. 2d 1246 (Fla. 2006). In that case, a group of Florida smokers and
smokers’ survivors filed a class action against the major tobacco companies,
including R.J. Reynolds, for injuries they suffered because of the tobacco
companies’ manufacture and sale of cigarettes containing nicotine. See id. at 1256
& n.3. The Engle class asserted numerous claims, including: (1) strict liability; (2)
fraud; (3) conspiracy to commit fraud; (4) breach of implied warranty; (5)
intentional infliction of emotional distress; (6) negligence; and (7) breach of
express warranty; they also requested equitable relief. See R.J. Reynolds Tobacco
Co. v. Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996).
After lengthy discovery and a year-long trial in the class action, the jury
found, among other things, that the tobacco companies had breached their duty of
care and sold defective cigarettes, and that their conduct satisfied the conduct
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elements of the torts of fraudulent concealment, conspiracy to fraudulently
conceal, breach of warranty, negligence, and strict liability. See Engle, 945 So. 2d
at 1255, 1276–77; see also Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342,
1346 (11th Cir. 2018) (“According to [the Florida Supreme Court], the Engle jury
did not decide the defendants’ liability, but instead ‘decided issues related to [the
defendants’] conduct.’”) (first brackets added) (quoting Engle, 945 So. 2d at 1263).
The Florida Supreme Court upheld the jury’s findings and “decertified the class to
allow individual actions about the remaining issues of specific causation, damages,
and comparative fault.” Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169,
1174 (11th Cir. 2017) (en banc) (citing Engle, 945 So. 2d 1246).
The Florida Supreme Court also clarified that some of the jury’s findings
“had preclusive effect in the later individual actions.” Id.; see also Engle, 945 So.
2d at 1277.
Specifically, the Engle jury findings establish: (1) “that smoking
cigarettes causes’ various diseases, including ‘lung cancer”; (2) “that
nicotine in cigarettes is addictive”; (3) “that the defendants placed
cigarettes on the market that were defective and unreasonably
dangerous”; (4) “that the defendants concealed or omitted material
information not otherwise known or available knowing that the material
was false or misleading or failed to disclose a material fact concerning
the health effects or addictive nature of smoking cigarettes or both”; (5)
“that the defendants agreed to conceal or omit information regarding the
health effects of cigarettes or their addictive nature with the intention
that smokers and the public would rely on this information to their
detriment”; (6) “that all of the defendants sold or supplied cigarettes that
were defective”; (7) “that all of the defendants sold or supplied
cigarettes that, at the time of sale or supply, did not conform to
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representations of fact made by said defendants”; and (8) “that all of the
defendants were negligent.”
Searcy, 902 F.3d at 1346 (quoting Engle, 945 So. 2d at 1276–77). All members of
the Engle class in their individual follow up trials are entitled to the benefit of
those specific findings without having to prove them.
As a result, in his individual lawsuit an “Engle progeny” plaintiff who
proves he is a member of the Engle class can use the findings of the Engle jury to
establish the conduct elements for the torts of “strict liability, negligence, breach of
express and implied warranty, fraudulent concealment, and conspiracy to
fraudulently conceal claims.” Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419,
436 (Fla. 2013).
What is left for each Engle progeny plaintiff to prove to prevail on an
individual claim for negligence and strict liability (the two claims on which Mrs.
Sowers succeeded) is: (1) membership in the Engle class, (2) individual causation,
which is established by showing “that addiction to smoking the Engle defendants’
cigarettes containing nicotine was a legal cause of the injuries alleged,” and (3)
damages. Searcy, 902 F.3d at 1346 (quoting Douglas, 110 So. 3d at 430). To
prevail on individual claims for fraudulent concealment and conspiracy to
fraudulently conceal (the two claims on which Mrs. Sowers did not succeed),
Engle progeny plaintiffs must prove: (1) membership in the Engle class; (2)
detrimental reliance on the material information that the Engle defendants had
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concealed and conspired to conceal about the health effects and/or addictive nature
of smoking; (3) that the plaintiff’s reliance was a legal cause of his injuries; and (4)
damages. See Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1106 (11th Cir.
2018).
If an Engle progeny plaintiff who is a member of the class asserts in his
individual lawsuit a negligence claim, he is entitled to the benefit of the
Engle jury’s finding that the tobacco company was negligent. But under Florida
law, in a negligence or strict liability action, the company is entitled to assert the
affirmative defense of comparative fault and to use it to seek a reduction in an
award of compensatory damages on the ground that the injured person 1 contributed
to his own injuries. See Fla. Stat. § 768.81(2) (stating that in a civil action for
damages based on certain claims, including negligence and strict liability,
“contributory fault chargeable to the claimant diminishes proportionately the
amount awarded as economic and noneconomic damages for an injury attributable
1
We say “injured person” instead of “plaintiff” because the plaintiff in a Florida
wrongful death action is the personal representative of the decedent’s estate, seeking damages for
the benefit of the estate itself and for the decedent’s survivors. See Fla. Stat. § 768.20. Mrs.
Sowers is both the estate’s personal representative and a survivor. As a result, she is both an
“injured person” and the “plaintiff.” But that will not necessarily be true in every wrongful death
case. If the personal representative is not one of the decedent’s survivors, she will not have
suffered any injuries that are compensable under the Florida Wrongful Death Act. See id.
§ 768.21. And, of course, to the extent the representative seeks to recover damages on behalf of
the decedent’s estate, the injured person (the decedent) cannot be the plaintiff. The dead can’t act
as litigants any more than they can act as judges. See Yovino v. Rizo, 139 S. Ct. 706, 710 (2019)
(per curiam) (holding that dead judges cannot decide cases and explaining that “federal judges
are appointed for life, not for eternity”).
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to the claimant’s contributory fault, but does not bar recovery”). Comparative fault
does not apply to intentional tort actions. Id. § 768.81(4). So when an Engle
progeny case contains both negligence and intentional tort claims, if the plaintiff
prevails on an intentional tort claim, any compensatory damages award “may not
be reduced by comparative fault.” Schoeff v. R.J. Reynolds Tobacco Co., 232 So.
3d 294, 305 (Fla. 2017); see also Smith v. R.J. Reynolds Tobacco Co., 880 F.3d
1272, 1279 (11th Cir. 2018).
II. BACKGROUND: THIS CASE
Mrs. Sowers brought her Engle progeny claims in a wrongful death lawsuit
for losses she suffered when her husband, a lifelong smoker, died of lung cancer in
1995. She asserted claims of fraudulent concealment, conspiracy to fraudulently
conceal, strict liability, negligence, gross negligence, and breach of both express
and implied warranty. 2 Among other defenses, R.J. Reynolds asserted in its
answer that Mr. Sowers had contributed to his injuries, “barring [Mrs. Sowers’]
recovery in whole or in part.”
Before the case went to trial, Mrs. Sowers withdrew her claims for breach of
warranty. Somewhere along the way her claim for gross negligence also dropped
out of the case. Nothing about that claim was put to the jury. The court did not
2
Mrs. Sowers’ complaint named three defendants: R.J. Reynolds, Philip Morris, and
Lorillard Tobacco Company. Only R.J. Reynolds is relevant to this appeal because Lorillard was
dismissed from the case before trial and the jury found Philip Morris was not liable.
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even mention the term “gross negligence” in its instructions, and the jury made no
findings about gross negligence or the lack of it.
The only claims that went to the jury were: (1) negligence; (2) strict liability;
(3) fraudulent concealment; and (4) conspiracy to fraudulently conceal. As we
have mentioned, the Florida Supreme Court’s holding in Engle established for the
jury in an Engle progeny lawsuit brought by a member of the class that the Engle
defendants — which included R.J. Reynolds — had committed the conduct
elements of each of those four torts. See Douglas, 110 So. 3d at 436 (noting that
Engle established “the Engle defendants’ common liability for the strict liability,
negligence, . . . fraudulent concealment, and conspiracy to fraudulently conceal
claims”). After a seven-day trial, the jury returned a verdict in favor of Mrs.
Sowers on the negligence and strict liability claims and found that she had
sustained $4,250,000 in compensatory damages.
The issues the jury resolved in reaching those results are reflected in its
answers to ten of the verdict form questions that the district court submitted to it.
The substance of the jury’s findings (this is a paraphrase) was:
Class Membership
1) Charles Sowers was addicted to cigarettes containing nicotine.
2) Addiction to cigarettes containing nicotine was a legal cause of his
death.
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Negligence and Strict Liability
3) Smoking R.J. Reynolds’ cigarettes was a legal cause of his lung
cancer and death.
4) He and R.J. Reynolds were each 50% at fault as the legal cause of
his lung cancer and death.
Fraudulent Concealment
5) He reasonably relied to his detriment on statements of R.J.
Reynolds that concealed or omitted material information
concerning the health effects and/or addictive nature of cigarette
smoking.
6) His reliance on those statements was not a legal cause of his death. 3
Conspiracy to Fraudulently Conceal
8) He reasonably relied to his detriment on statements R.J. Reynolds
made in furtherance of its agreement to conceal or omit material
information concerning the health effects and/or addictive nature
of smoking.
9) His reliance on those statements was not a legal cause of his lung
cancer and death.
Damages
10) The amount of compensatory damages sustained by Mrs. Sowers
for the loss of her husband’s companionship and protection, and
3
The jury was instructed to skip question number seven if it answered “no” to question
number six, which it did.
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her mental pain and suffering as a result of his lung cancer and
death, was $4,250,000.
Because the jury did not find for Mrs. Sowers on her intentional tort claims, the
compensatory damages award was reduced by half based on the jury’s
determination that Mr. Sowers was 50% at fault for his injuries, resulting in a
compensatory damages award of $2.125 million. See Schoeff, 232 So. 3d at 305.
III. BACKGROUND: CHARLES AND MARY’S LIFE TOGETHER
At trial, the jury considered extensive evidence about the history of cigarette
design, use, and marketing in America. Because little of that evidence is relevant
to the issues before us, we will skip most of it. In this part of the opinion we will
discuss mostly facts about Mr. Sowers’ life and his marriage to Mrs. Sowers that
were put before the jury, as well as some facts on that subject R.J. Reynolds was
not allowed to put before the jury. These facts are relevant to the evidentiary
ruling that is an issue in the appeal.
Charles and Mary Sowers met in 1944 when he was in the Navy. He was
nineteen, she was eighteen, and it was “love at first sight.” They married four
months later, had four children, and eventually settled in Florida. After retiring
from the Navy, Charles worked as a parts salesman for trucking companies.
Charles was a heavy smoker when Mary met him, and he smoked between
one and three packs of cigarettes a day for most of his life. Mary described him as
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a “chain smoker,” testifying that he “always had [a cigarette] in his hand,” and the
“first thing” he did every morning was smoke. She described how he had “tried
very hard to quit smoking” several times, but was never able to, and how he would
get “jittery and nervous and seemed to have a lot of anxiety” whenever he tried to
quit. At some point, Charles went to a doctor “and talked about [how to quit
smoking], but he still said he just couldn’t give it up.” In 1994, after he was
diagnosed with lung cancer, Charles was finally able to quit smoking with the help
of nicotine gum. But, of course, it was too late. He died of lung cancer in 1995.
Charles had also been a heavy drinker for part of his life. Mary testified that
he was drinking heavily when they met and he continued doing so after they got
married. She said he would sometimes stop at a bar on the way to work and would
also sometimes drink while at work. 4 One of Mary’s own experts testified that
Charles “was universally characterized as someone who not only was a heavy
drinker, but did not have control over that behavior, and, therefore, he was in
trouble with alcohol.” The same expert also stated that Charles’ drinking was “a
major source of friction in his marriage” and agreed that it was a “clinically
significant disruption” in his relationship with Mary.
4
That testimony about Charles’ drinking was contradicted by the testimony of his
brother, William Sowers, who stated that Charles was only a “sociable drinker,” didn’t drink
before work, and that he could never remember Charles drinking during work or on a lunch
break.
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The couple divorced in 1969 and Mary stated in her deposition it was
because of Charles’ “drinking and cheating.” At the time they divorced, he was
cheating on Mary with a woman named Louise. Soon after the divorce, Charles
married a different woman (not Louise). He later divorced his second wife and he
and Mary remarried in 1972. They remained married until Charles’ death in 1995.
In 1979, several years after their remarriage, Charles and Mary attended a
revival. When the preacher asked if anyone wanted to be saved, Charles — to
Mary’s surprise — stood up and went down to the altar. After the revival, Charles
threw out all his alcohol and never drank again. He asked his doctor for help to
quit drinking, and his doctor prescribed two medications: one to ease his
withdrawal symptoms, and another to deter him from drinking by making him
nauseated if he did. Charles also tried to quit smoking at that time, but he couldn’t
do it. Mary testified that after Charles “received Jesus as his savior, we had a good
marriage. A good marriage.”
IV. THE RULING ON THE MARITAL DISCORD EVIDENCE
Before trial, Mrs. Sowers moved to exclude testimony about her husband’s
infidelity and the couple’s divorce and remarriage, arguing that evidence of it was
both irrelevant under Federal Rule of Evidence 402 and unduly prejudicial under
Rule 403. R.J. Reynolds argued that the evidence was relevant to damages,
addiction, and causation, and was necessary to rebut Mrs. Sowers’ testimony about
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the length of the marriage and how long Mr. Sowers had smoked. 5 The district
court granted Mrs. Sowers’ motion to exclude, ruling that the marital-discord
evidence was not relevant because it had occurred so long ago. The court also
found that because the evidence would cast Mr. Sowers in a bad light it would be
unfairly prejudicial under Rule 403.
We review evidentiary rulings only for an abuse of discretion. Aycock v.
R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014). “A district
court abuses its discretion if it ‘applies an incorrect legal standard, applies the law
in an unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous.’” Id. (quoting
Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010)). A clear
error of judgment is also an abuse of discretion, United States v. Brown, 415 F.3d
1257, 1266 (11th Cir. 2005), but we “recognize a significant range of choice for
the district court on evidentiary issues” and “defer to its decisions to a considerable
extent,” id. at 1265.
Under the Federal Rules of Evidence, relevant evidence may be excluded
only “if its probative value is substantially outweighed by a danger of one or more
5
Mrs. Sowers argues that R.J. Reynolds forfeited its arguments that the marital-discord
evidence was relevant to addiction and causation because it didn’t make those arguments in
pretrial briefing. Because we conclude that the district court did not abuse its discretion in
excluding the evidence, we need not address that argument.
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of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.
403. Courts should strike the balance “in favor of admissibility,” and “look at the
evidence in a light most favorable to admission, maximizing its probative value
and minimizing its undue prejudicial impact.” Aycock, 769 F.3d at 1069
(quotation marks omitted). The more essential evidence is to a party’s case, the
more probative it is, which means that duplicative testimony that simply “bolster[s]
a party’s case is more easily excluded under Rule 403” than testimony about issues
the jury doesn’t hear about some other way. Id.
R.J. Reynolds argues that the marital-discord evidence was relevant for four
reasons. First, it argues that the evidence would have informed the jury’s non-
economic damages determination because “[a] jury cannot assess the spouse’s
‘loss’ of companionship, or her ‘mental pain and suffering,’ without ‘an honest and
accurate picture of the marriage relationship between the decedent and the
surviving spouse.’” 6 Second, R.J. Reynolds argues that the marital-discord
6
In support of its argument, R.J. Reynolds relies heavily on our decision in Aycock v.
R.J. Reynolds Tobacco Co., 769 F.3d 1063 (11th Cir. 2014), and a Florida District Court of
Appeal’s opinion in Adkins v. Seaboard Coast Line R.R., 351 So. 2d 1088 (Fla. 2d DCA 1977).
But Aycock and Adkins have different timelines than does this case, and the difference matters.
In both of those cases the improperly excluded evidence showed that the marriages were being
harmed by the husband’s actions near the time he died. See Aycock, 769 F.3d at 1066, 1071;
Adkins, 351 So. 2d at 1092. But in this case, R.J. Reynolds wanted to present evidence of
marital discord that occurred twenty years before Mr. Sowers’ death. That is a significant
enough difference to mean that neither Aycock nor Adkins controls.
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evidence would have given the jury a more accurate understanding of the extent of
Mr. Sowers’ alcohol addiction, which he overcame, and showing that he also could
have overcome his nicotine addiction if he had wanted to do so. Third, R.J.
Reynolds argues that the evidence was necessary to give the jury the full story
about the Sowers’ marriage and prevent the jury from having the false impression
that they had been continuously and happily married from 1944 until 1995. 7 Even
if the marital-discord evidence were relevant to each of those topics, the district
court did not abuse its discretion in concluding that the evidence’s probative value
was substantially outweighed by the risk it would unfairly prejudice Mrs. Sowers.
Especially since it would have been duplicative of other evidence on the topics for
which R.J. Reynolds contends it was relevant.
The jury heard evidence about the extent of Mr. Sowers’ alcohol abuse and
its negative impact on his marriage. It heard that he was a heavy drinker in the
1940s, 50s, 60s, and 70s. It heard that he drank in the morning and throughout the
7
R.J. Reynolds’ fourth argument is that the marital-discord evidence should have been
admitted to rebut Mrs. Sowers’ testimony that her husband smoked “every day.” Its theory is
that Mr. Sowers might have taken a break from smoking during their three-year divorce that she
would not have known about. But R.J. Reynolds provides no evidence to support the idea that
Mr. Sowers stopped smoking during those three years, only hope-driven conjecture. Conjecture
is not enough to show that the district court abused its discretion in excluding the evidence. Cf.
Yellow Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d 1255, 1276 (11th Cir. 2015) (holding that
the district court did not abuse its discretion in excluding “testimony [which] was pure
speculation, and thus too attenuated to be relevant”). That is especially so in the present case
because other witnesses who knew him during those three years, including his brother, testified
that Mr. Sowers had “smoked all of his life.”
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day, and that he sometimes stayed out all night drinking. And it heard that his
drinking caused “significant friction in his marriage” and was a “clinically
significant disruption” in his life. All the evidence of Mr. Sowers’ alcohol use and
marital problems that the jury did hear means that evidence of the Sowers’ divorce
and remarriage more than two decades before his death would have been
duplicative and cumulative, which diminishes any probative value it would have
had.
R.J. Reynolds argued extensively in closing that Mr. Sowers’ ability to quit
drinking means he could have quit smoking if he had wanted to, which of course
undermines its argument that the evidence of marital-discord and three-year
divorce was necessary to make that same point. For example, R.J. Reynolds
argued to the jury that:
He threw away his alcohol, but he did not throw away his cigarettes.
He went to his doctor for help to quit drinking. He did not go to his
doctor for help to quit smoking. He used medicine to stop drinking.
He didn’t use any kind of medicine to try to quit smoking. He wanted
to quit drinking. He was committed to stopping drinking.
....
He took action when he became motivated to quit drinking, he did not
take action to try to quit smoking, and that’s because he didn’t want to
quit. He enjoyed his smoking. That’s what he wanted to do. And
that’s fine. But he can’t come to court and get money for that.
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Evidence that Mr. Sowers’ heavy drinking contributed to the deterioration of his
marriage was not necessary for R.J. Reynolds to draw comparisons between his
alcohol use and his smoking.
Of course, evidence of the Sowers’ marital discord, though far in the
couple’s past and more than 20 years before he died, might have affected to some
extent how the jury viewed Mrs. Sowers’ testimony about her husband. And it
might have given the jury a fuller understanding of the couple’s many years of life
together. But that does not mean that the probative value of the evidence
outweighed its prejudicial impact. The evidence the jury did hear about Mr.
Sowers’ long history of alcohol abuse and how it harmed the marriage diminished
the probative value that the excluded evidence of the couple’s temporary and long
ago “unmarriage” might have otherwise had. “[W]hat counts as the Rule 403
‘probative value’ of an item of evidence, as distinct from its Rule 401 ‘relevance,’
may be calculated by comparing evidentiary alternatives.” Old Chief v. United
States, 519 U.S. 172, 184 (1997). And the danger that the evidence would cause
“unfair prejudice” within the meaning of Rule 403 is obvious. The court’s ruling is
within the range of discretion district courts are allowed in evidentiary matters.
V. THE CLOSING ARGUMENT ISSUES
After trial, R.J. Reynolds moved for a new trial or remittitur, arguing, among
other things, that Mrs. Sowers’ attorney had made improper statements during
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closing arguments that affected the jury’s damages determination. The district
court denied the motion, finding that the statements were not improper.
We review only for abuse of discretion a district court’s rulings about
statements of counsel during closing argument. Goldsmith v. Bagby Elevator Co.,
Inc., 513 F.3d 1261, 1275 (11th Cir. 2008). Arguing that it is reprehensible for the
defendant you are suing to defend itself “serves no proper purpose” and can
sometimes be the basis for a new trial. Whittenburg v. Werner Enters. Inc., 561
F.3d 1122, 1130 (10th Cir. 2009) (collecting cases). But remarks made during
closing argument will justify granting a new trial or reversing a judgment only if
they are “plainly unwarranted and clearly injurious.” Cote v. R.J. Reynolds
Tobacco Co., 909 F.3d 1094, 1104 (11th Cir. 2018) (quotation marks omitted). In
deciding closing argument issues on appeal, we consider “the entire argument, the
context of the remarks, the objection raised, and [any] curative instruction.” Id. at
1103 (quotation marks omitted).
R.J. Reynolds complains of the following comments that Mrs. Sowers’
attorney made during his rebuttal closing argument:
MR. HEIMANN [Counsel for Mrs. Sowers]: And I will say to you
once again, doesn’t it — isn’t it obvious that if Mr. Sowers had not been
addicted, had not been under the compulsion of addiction to smoke
cigarettes, that he would have quit? Wouldn’t any intelligent human
being knowing what we know about and what — I said this before,
we’re not saying that he was ignorant by any means of the fact that there
was a serious issue at the very least about smoking and health, wouldn’t
any intelligent human being quit if they were not actually addicted?
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What you really have at work in this courtroom in terms of the
defense is hypocrisy at work.
MS. PARKER [Counsel for R.J. Reynolds]: Your Honor, objection.
Your Honor’s ruling on our bench brief.
THE COURT: Overruled.
MR. HEIMANN: For 50 years and more —
MS. PARKER: Your Honor, objection then. There is a pretrial order
on continuing issue — on the continuing issue.
MR. HEIMANN: I’m talking about when the events took place at the
time, not today.
THE COURT: Proceed.
MR. HEIMANN: 50 years and more these tobacco companies did
everything they could to sustain smoking in this country by creating
doubt and controversy where there should have been no doubt and
where there should have been no controversy, by denying that there was
proof of a causal link when they knew that there was, by insisting that
more research was necessary, when they knew that the fact that lung
cancer and other diseases were caused by smoking was a factor. 50
years and more that was their message to Americans. Now they come
into court, now they come into court —
MS. PARKER: Your Honor, objection. We are now into that pretrial
order.
THE COURT: I’m going to let him proceed and — overruled.
MR. HEIMANN: Now they come into court and their defense is Mr.
Sowers should have known, that everybody should have known what
they, the tobacco companies, denied all that time. And, in fact, they
even go so far as to tell you that the public health authorities are
responsible, at least in large part, because they recommended filtered
cigarettes and low tar cigarettes. And what was the fact about that? Dr.
Burns testified about that in detail. The truth of the matter is the tobacco
companies knew what the public health authorities and what Reader’s
Digest and Consumer Reports didn’t know, and they concealed what
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they knew about the fact that filters were not safer and about the fact
that their low tar cigarettes were not safer. The public health authorities
were wrong.
R.J. Reynolds argues that these statements improperly criticized it for
defending itself. It interprets the statements as suggesting “that Reynolds was
doing something wrong — hypocritical — by defending against charges that it
caused Mr. Sowers to smoke, or denying that it bore all the responsibility for his
smoking.” And it asserts that the jury’s “very high award” for non-economic
damages demonstrates that the jury was prejudiced by the statements.
Mrs. Sowers responds that, viewing her attorney’s statements in the context
of the closing arguments as a whole makes clear that he was criticizing the
substance of R.J. Reynolds’ defense, not the fact of it. Specifically, she asserts that
her counsel was merely responding to arguments R.J. Reynolds made in its closing
argument. She is right. Every defendant has a right to present a defense, but not to
prevent the plaintiff from replying to it. To the defense that Mr. Sowers should
have known, and must have known, how dangerous smoking was, a fair reply is
that he might have known better if R. J. Reynolds had not been so deceitful about
the dangers of smoking for so long. Mrs. Sowers’ attorney didn’t attack R.J.
Reynolds for putting forward a defense, he attacked the substance of the defense it
put forward, replying to the arguments the company made in its closing argument.
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R.J. Reynolds told the jury in its closing argument that “the real Mr. Sowers
knew that smoking was bad for him, and knew that smoking could cause lung
cancer.” It argued that Mr. Sowers “knew about all these health risks” associated
with smoking. It argued that Mr. Sowers may have thought filtered cigarettes were
safer than regular ones because he “may very well have heard one of these news
programs or this public service announcement or what was put out by the
American Cancer Society.” And it argued that the jury didn’t face “a situation
where [Mr. Sowers] did not know [the health risks of smoking] because of a
tobacco company.”
Considering the context, the district court did not abuse its discretion in
overruling the objections to the arguments of Mrs. Sowers’ counsel. See Cote, 909
F.3d at 1103 (stating that we consider, among other things, the context of the
arguments to determine if they affected the jury’s determination). The context
shows that Mrs. Sowers’ counsel wasn’t criticizing R.J. Reynolds’ “hypocrisy” for
merely defending against Mrs. Sowers’ suit. He was criticizing R.J. Reynolds’
hypocrisy for arguing that Mr. Sowers should have known — or did know —
something that R.J. Reynolds and other cigarette companies tried so hard to hide
from the public: the health risks of smoking. He wasn’t criticizing R.J. Reynolds
for merely “com[ing] into court”; he was criticizing R.J. Reynolds for spending
“50 years and more . . . creating doubt and controversy” about the health risks of
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smoking and then arguing in court that Mr. Sowers should have known about the
health risks. And he wasn’t complaining about R.J. Reynolds having a “defense”;
he was complaining about R.J. Reynolds having a defense “that everybody should
have known what they, the tobacco companies, denied all that time.” It was a fair
argument and he had a right to make it.
VI. PUNITIVE DAMAGES AND THE ISSUE ABOUT
THE SCOPE OF THE TRIAL ON REMAND
A. The Error in Not Submitting the Punitive Damages Issue to the Jury
Finally, we turn to Mrs. Sowers’ cross-appeal on the issue of punitive
damages. The district court, relying on a decision by a Florida District Court of
Appeal, ruled that she could seek punitive damages on her fraudulent concealment
and conspiracy to fraudulently conceal claims, if she prevailed on those two
claims, but it turned out she did not. See In re Engle Cases, No. 3:09-CV-10000-J-
32JBT, 2013 WL 12157846, at *3 (M.D. Fla. Mar. 1, 2013) (opinion in the master
case) (citing Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456, 460–61 (Fla. 1st
DCA 2012)). Relying on the same District Court of Appeal decision, the district
court also ruled that Mrs. Sowers could not seek punitive damages on the
negligence and strict liability claims, which it turned out she did prevail on. Id.
The net result was that the jury never considered whether to award Mrs. Sowers
punitive damages.
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After the trial in this case was over, however, the Florida Supreme Court
reversed the District Court of Appeal’s decision that the district court had relied on
and held that Engle-progeny plaintiffs, like Mrs. Sowers, could pursue punitive
damages on “all claims properly raised in their subsequent individual actions.”
Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1221 (Fla. 2016).
Assuming, of course, they prevailed on some claims in their individual actions.
Negligence and strict liability are “claims properly raised” in Mrs. Sowers’
individual action (her trial and this appeal), and she did prevail on them. So Mrs.
Sowers should have been allowed to seek punitive damages on her negligence and
strict liability claims and it was error for the district court not to allow her to do so,
although the error stemmed from the court following what was the law at that time.
Mrs. Sowers is entitled to have that error corrected by a remand for purposes
of a trial on the issue of whether she should receive punitive damages on the
negligence and strict liability claims and, if so, how much. No one disputes that she
is entitled to a trial for that purpose.
B. The Issue Involving the Scope of the Trial on Remand
The dispute is about whether the trial on remand can be limited to punitive
damages, as Mrs. Sowers contends, or must be a complete re-do of all of the
liability issues as well, which is R.J. Reynolds’ position. She doesn’t want to have
to put her hard won liability and compensatory damages judgment at risk as the
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cost for seeking punitive damages in a new trial. But that is exactly the cost that
R.J. Reynolds wants us to charge Mrs. Sowers for seeking punitive damages from
it in a new trial.
Actually, what the company wants to do is pressure the elderly widow,
whose husband its products killed, out of exercising her right to seek punitive
damages from it for that. The amount of pressure that strategy employs is shown
by the fact that Mrs. Sowers has stated through her attorneys that if she is forced to
retry the liability and compensatory damages issues as the cost of seeking punitive
damages, she will forsake her right to seek them. Reply Br. at 15. If the law
permits R.J. Reynolds to force that difficult choice on her, so be it. See 28 U.S.C.
§ 453 (requiring each federal judge to solemnly swear or affirm to “administer
justice without respect to persons, and do equal right to the poor and to the rich”
and to “impartially discharge and perform all the duties incumbent upon [the
judge] under the Constitution and laws of the United States.”). But we don’t think
that the Constitution or laws of the United States require putting Mrs. Sowers to
that choice.8
8
The Florida Supreme Court held that the proper remedy in a case in which a plaintiff
had been erroneously prevented from seeking punitive damages on her negligence or strict
liability claims is to remand for a trial limited to the issue of punitive damages. Soffer v. R.J.
Reynolds Tobacco Co., 187 So. 3d 1219, 1233–34 (Fla. 2016). That is not the end of the matter
here because we aren’t a Florida state court, and we must consider the Seventh Amendment and
its Reexamination Clause. The Soffer decision had no need to do that because the Seventh
Amendment “governs proceedings in federal court, but not in state court.” Gasperini v. Ctr. for
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C. The Reexamination Clause and Decisions Applying It
In arguing that a new trial on remand must wipe the slate clean of the
liability verdicts and compensatory damages award, requiring Mrs. Sowers to start
from scratch on those issues, R.J. Reynolds’ points to the Seventh Amendment,
which states in full:
In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.
U.S. Const. Amend. VII. The first clause has been called the “Jury Trial Clause,”
and the second the “‘Reexamination’ Clause.” See, e.g., Searcy, 902 F.3d at 1354
(referring to the “Reexamination Clause”); Full Spectrum Software, Inc. v. Forte
Automation Systems, Inc., 858 F.3d 666, 675 (1st Cir. 2017) (referring to the “Jury
Trial Clause”). Although the Seventh Amendment issue in this case involves only
the Reexamination Clause, the two clauses are inseparably linked and have been
since the beginning.
“[O]ne of the strongest objections originally taken against the [C]onstitution
of the United States[] was the want of an express provision securing the right of
trial by jury in civil cases.” Colgrove v. Battin, 413 U.S. 149, 152–53 (1973)
(quotation marks omitted). In fact, a bill of rights was first proposed at the
Humanities, Inc., 518 U.S. 415, 418 (1996); accord Osborn v. Haley, 549 U.S. 225, 252 n.17
(2007) (“[T]he Seventh Amendment would not figure in the case, for it is inapplicable to
proceedings in state court.”).
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Philadelphia Constitutional Convention not in response to concerns about privacy
or freedom of speech or freedom of the press, but because of concerns about the
new Constitution not guaranteeing jury trials in civil cases. See Charles W.
Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L.
Rev. 639, 657–59 (1973); see also Lisa Litwiller, Has the Supreme Court Sounded
the Death Knell for Jury Assessed Punitive Damages? A Critical Re-Examination
of the American Jury, 36 U.S.F. L. Rev. 411, 418 (2002) (quoting Wolfram, supra,
at 657); Roger Roots, The Rise and Fall of the American Jury, 8 Seton Hall Cir.
Rev. 1, 2 (2011) (“Indeed, as Yale Law Professor Akhil Amar recounts, the entire
debate at the Philadelphia convention over the necessity of a bill of rights ‘was
triggered when George Mason [mentioned] . . . that no provision was yet made for
juries in civil cases.’”) (quotation marks omitted) (quoting Akhil R. Amar, The Bill
of Rights: Creation & Reconstruction, 83 (1998)); Edith Guild Henderson, The
Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 293 (1966).
The Anti-Federalists, who opposed the ratification of the Constitution, were
not only upset that it did not guarantee the right to jury trials in civil cases but also
concerned that it might even abolish civil jury trials. Patrick Woolley, Mass Tort
Litigation and the Seventh Amendment Reexamination Clause, 83 Iowa L. Rev.
499, 508 (1998). That concern arose from Article III, Section 2 of the
Constitution, which provides that “[i]n all the other Cases before mentioned, the
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supreme Court shall have appellate Jurisdiction, both as to Law and Fact.” U.S.
Const. Art. III, § 2, cl. 2 (emphasis added). The Supreme Court’s constitutional
authority to determine facts was especially troubling to the Anti-Federalists
because of a practice existing at the time in the New England States that “permitted
removal of a case after judgment for a retrial by jury in a superior court.”
Woolley, supra, at 507. The Constitution arguably authorized similar retrials of
jury trials in appellate courts. Id. at 506–07. “Indeed, because the original
Constitution did not have an express civil jury trial provision, Section 2 of the
Judicial Article could fairly be read as authorizing the Supreme Court to retry civil
cases without a jury.” Id. at 507. Out of that political anxiety came the Seventh
Amendment.
At the time, the states “varied widely as to the cases in which civil jury trial
was provided,” and there was no existing federal practice. Colgrove, 413 U.S. at
153–55. For that reason, the Seventh Amendment language ensuring the right to a
jury in civil cases “necessarily ha[d] to be general.” Id. at 155. Which is why it
speaks generally of “suits at common law.” Id. The purpose of that language was
“to retain the common-law distinction between the province of the court and that of
the jury” and to ensure that “issues of law are to be resolved by the court and issues
of fact are to be determined by the jury under appropriate instructions by the
court.” Balt. & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935).
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The Supreme Court has recognized again and again that the scope of the jury
trial right that the Seventh Amendment preserves is “the substance of the common-
law right of trial by jury, as distinguished from mere matters of form or
procedure.” Id.; accord Colgrove, 413 U.S. at 156–57 (collecting cases); Galloway
v. United States, 319 U.S. 372, 390 (1943) (“The Amendment did not bind the
federal courts to the exact procedural incidents or details of jury trial according to
the common law in 1791, any more than it tied them to the common-law system of
pleading or the specific rules of evidence then prevailing.”); Gasoline Prods. Co. v.
Champlin Refining Co., 283 U.S. 494, 498 (1931) (“[T]he Seventh Amendment
does not exact the retention of old forms of procedure.”). In line with the focus on
substance instead of procedure, the Supreme Court has upheld against Seventh
Amendment challenges “many procedural devices developed since 1791 that have
diminished the civil jury’s historic domain.” Parklane Hosiery Co. v. Shore, 439
U.S. 322, 336 (1979). The Court has held, for example, that a directed verdict does
not violate the Seventh Amendment. Galloway, 319 U.S. at 388–96. Nor does
summary judgment. Fidelity & Deposit Co. of Md. v. United States, 187 U.S. 315,
319–21 (1902).
As we have mentioned, this appeal is concerned with the Reexamination
Clause. It might be more accurately described as the “Anti-Reexamination
Clause” because it protects the flank of the Jury Trial Clause by forbidding
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reexamination in any federal court of a “fact tried by a jury” other “than according
to the rules of the common law.” U.S. Const. Amend. VII; see W. Russell Taber,
The Reexamination Clause: Exploring Bifurcation in Mass Tort Litigation, 73 Def.
Couns. J. 63, 69 (2006) (“Essential to [the jury trial] right was the complementary
guarantee that the findings of that jury would not be overturned in a subsequent
proceeding. Accordingly, the Reexamination Clause protects the fundamental
right to jury trial by prohibiting certain reexaminations of jury conclusions.”).
Justice Story was of the view that the Reexamination Clause was, if anything, “still
more important” than the Jury Trial Clause. See 3 Joseph Story, Commentaries on
the Constitution of the United States § 1764, at 646 (1833).
In the seminal Reexamination Clause decision, Gasoline Products Co. v.
Champlin Refining Co., the Supreme Court interpreted and applied the
Reexamination Clause in a breach of contract case in which “errors in the charge
of the trial court with respect to the measure of damages on the counterclaim,”
which was also for breach of contract, required a new trial. 283 U.S. at 495–96.
The question was whether the new trial could be limited to damages or also had to
include the issue of liability, which had already been decided in the original trial.
Id. at 495–97. The court of appeals had ordered retrial on only the issue of
damages. Id. at 496. The Supreme Court reversed, concluding that confining the
retrial to damages in that particular case would violate the Reexamination Clause.
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Id. at 497. In the course of explaining its conclusion, the Court set out the rule for
when an issue may be separately re-tried before a new jury.
The Court acknowledged that “at common law there was no practice of
setting aside a verdict in part,” as the court of appeals had done in that case by
ordering a retrial of the damages issue alone. Id. at 497. It quoted Lord
Mansfield’s description of the common law rule as requiring that, when a verdict is
correct on one issue but erroneous on another, “[f]or form’s sake, we must set
aside the whole verdict.” Id. at 498. The Court was not impressed, reasoning that:
“we are not now concerned with the form of the ancient rule. It is the Constitution
which we are to interpret; and the Constitution is concerned, not with form, but
with substance.” Id. And the constitutional substance, the Court held, is that if a
jury has reached a proper verdict “upon one issue of fact,” the Seventh
Amendment and its Reexamination Clause do “not compel a new trial of that issue
even though another and separable issue must be tried again.” Id. at 499. At least
they don’t necessarily require a new trial of the properly determined issue as well
as the improperly determined one.
Separability is the key. The Supreme Court explained in Champlin Refining
that the crucial determination for Reexamination Clause purposes is whether the
issue on which a party seeks partial retrial is “separable” — that is, whether the
issue is “so distinct and independent of the others . . . that it can be separately
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tried.” Id. The Court stated the rule: A partial new trial “may not properly be
resorted to unless it clearly appears that the issue to be retried is so distinct and
separable from the others that a trial of it alone may be had without injustice.” Id.
at 500.
Applying that rule, the Supreme Court found that the issues of liability and
damages were not separable in the Champlin Refining case itself. Id. They were
not because the facts underlying the liability issue that the first jury had decided
were intertwined with those underlying the damages issue that the second jury
would be deciding. See id. at 499. Any jury determining the amount of damages
for a breach of contract would need to know the contract terms, the date of its
formation, and the date of its breach. Id. In the course of deciding that there was
liability, the first jury had already found those facts, although its specific findings
were not revealed in the verdict. See id. at 499–500. The second jury could not
decide damages without reexamining those same factual issues and making new
findings. Id. at 500. That is why the Supreme Court concluded that the question of
damages was “so interwoven with that of liability” that a partial retrial on the issue
of damages could not be had without injustice and therefore would violate the
Reexamination Clause. Id. at 500–01. A full retrial was required. Id.
We have applied Champlin Refining’s Reexamination Clause standard a
number of times, usually affirming a district court’s grant of a partial retrial of an
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issue before a new jury or ordering one ourselves. See, e.g., Overseas Private Inv.
Corp. v. Metro. Dade Cty., 47 F.3d 1111, 1113, 1116 (11th Cir. 1995) (“Because
the liability issues were properly and clearly decided by the jury, the remedy in this
instance is to remand the case to the district court for a new trial on the amount of
damages only.”); Roboserve, Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441, 1447 (11th
Cir. 1991) (affirming district court’s grant of new trial as to all claims in the
complaint but reinstating the jury verdict on the counterclaim since the
“counterclaim was severable from the rest of the case because the first jury could
decide the counterclaim as an independent issue, without reference to the . . . issues
raised by [the plaintiff’s] complaint”); Burger King Corp. v. Mason, 710 F.2d
1480, 1487 (11th Cir. 1983) (affirming the district court’s order of a partial new
trial because the record confirmed the separability of the “liability and damages
issues”); Mfg. Research Corp. v. Greenlee Tool Co., 693 F.2d 1037, 1041–42 (11th
Cir. 1982) (affirming the district court’s grant of a new trial limited to the issue of
damages, even though some evidence from the first trial was repeated in the
second trial because “[t]he repetition of some of the liability evidence, necessary to
establish causation, did not render the trial unfair”); see also FIGA v. R.V.M.P.
Corp., 874 F.2d 1528, 1533–34 (11th Cir. 1989) (acknowledging that “the scope of
a new trial may be limited to a single issue when the issue as to which a new trial is
required is separate from all other issues and the error requiring a new trial does
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not affect the determination of any other issue,” but concluding that the issues of
damages and liability “are so interwoven . . . that justice demands a retrial of these
issues together”) (quotation marks omitted); cf. Brown v. Electrolux Home Prods.,
Inc., 817 F.3d 1225, 1239 (11th Cir. 2016) (noting the “many tools” district courts
may use “to decide individual damages” in a class action case, including
“bifurcating liability and damage trials with the same or different juries”)
(quotation marks omitted) (emphasis added).
Two years ago we decided a Reexamination Clause issue in an
Engle progeny case. See Searcy, 902 F.3d at 1354–58. The jury in Searcy was
instructed that, if it found the plaintiff’s relative (her mother) was a member of the
Engle class, “it should rely on the Engle findings,” and accept that the defendant
tobacco companies had committed the conduct elements of the concealment torts,
“as if the [Searcy] jury had found those facts itself.” Id. at 1347. The jury was
also instructed that the plaintiff could prevail on her fraudulent concealment and
conspiracy to fraudulently conceal claims only if the jury found that “in deciding
or continuing to smoke, [the plaintiff’s mother had] relied on the particular
misleading information disseminated by the particular defendant and that such
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reliance caused harm.” Id. The jury found for the plaintiff on those concealment
claims and awarded punitive damages based on them.9 See id.
The tobacco companies challenged that award, arguing on appeal that
allowing the progeny jury to award punitive damages based on the Engle jury’s
finding of concealment “required the [progeny] jury to speculate as to what the
specific conduct was that formed the basis of the Engle jury findings,” violating
the Reexamination Clause. Id. at 1354. The companies argued that, unlike
awarding compensatory damages in an Engle-progeny case, which are based on
“the actual, individual harm suffered by [that] Plaintiff as determined by the jury at
her trial,” awarding punitive damages requires that the progeny jury “reassess the
Engle jury findings in order to decide whether to award any punitive damages, and,
if so, how much.” Id.
Applying the standard from Champlin Refining, we held that because the
original Engle jury and the Searcy jury (an Engle progeny jury) had been asked to
9
The original Engle class action jury awarded the class a lump-sum of $145 billion in
punitive damages. See Engle, 945 So. 2d at 1257. The Florida Supreme Court vacated that
award as excessive and premature, but it effectively allowed Engle-progeny plaintiffs to pursue
punitive damages in their individual actions. See id. at 1269–70. We acknowledged in our
Searcy decision, however, that the Florida Supreme Court did not “address any Seventh
Amendment implications of its decision to have punitive damages questions reserved for the
progeny trials.” Searcy, 902 F.3d at 1356. After all, as we have already noted, the Seventh
Amendment applies only in federal court. See n.7, supra.
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resolve different factual issues, the Reexamination Clause had not been violated.10
Id. at 1358. We described what the district court in Searcy had instructed the jury:
[P]unitive damages were warranted only if the jury found by clear and
convincing evidence that the fraudulent conduct by defendant causing
[the decedent’s] lung cancer death showed: “[1] reckless disregard of
human life or the safety of the persons exposed to the effect of such
conduct [2] an entire lack of care that the defendant must have been
conscientiously indifferent to the consequences [3] an entire lack of
care that the defendants must have wantonly or recklessly disregarded
the safety and welfare of the public or [4] such reckless indifference to
the rights of others as to be equivalent to an intentional violation of
those rights.”
Id. at 1357 (cleaned up) (bracketed numbers in original). That instruction, we
explained, focused the jury “on the conduct of Defendants that caused” the death
of the plaintiff’s mother. Id. The jury was not, as the defendant tobacco
companies had argued, “asked to speculate about what the [original] Engle jury
had found.” Id. Instead, the Searcy jury was asked “merely to examine the
evidence that had been presented before it at trial” and determine whether the
defendants’ conduct warranted “punishment . . . via additional damages.” Id. We
10
On the way to reaching that holding in Searcy, we made two assumptions in the
tobacco companies’ favor: that the Reexamination Clause applies to a punitive damages
determination, and that it could, in some circumstances, be violated if a later jury decided only
the punitive damages issue. Searcy, 902 F.3d at 1357. The Searcy plaintiff argued that the
Seventh Amendment, including the Reexamination Clause, does not apply to a punitive damages
determination because an award of punitive damages is not a finding of fact. Id. at 1354; see
Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 437 (2001) (“[T]he jury’s
award of punitive damages does not constitute a finding of ‘fact.’”). We did not address that
argument because we concluded that, even if the Seventh Amendment did apply, it was not
violated. Searcy, 902 F.3d at 1358.
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held that allowing the Searcy jury to determine punitive damages based in part on
the findings of the original Engle jury that the defendant tobacco companies had
committed the conduct elements of the torts of fraudulent concealment and
conspiracy to fraudulently conceal did not violate the Reexamination Clause. Id. at
1358; see also id. at 1346.
Our Searcy decision is instructive and informs our resolution of the
Reexamination Clause issue in this case, but it is arguably distinguishable. It
involved the original Engle class action jury and a later individual action before an
Engle progeny jury. It did not involve two Engle progeny juries –– an earlier one
that had returned a verdict for an individual plaintiff on negligence and strict
liability (with underlying findings of class membership, legal causation, and
comparative fault), and a later one that would decide how much punitive damages,
if any, that same plaintiff would recover. Those are the circumstances that frame
the Reexamination Clause issue in this case.
D. Applying the Reexamination Clause to this Case
R.J. Reynolds argues that under the Reexamination Clause rule, a full retrial
is necessary if there is to be a trial on punitive damages because “[t]here is no way
to litigate punitive damages without reexamining the first jury’s findings
concerning Reynolds’ conduct, which inhere in its class membership, comparative-
fault, and compensatory-damages verdicts.” Response and Reply Br. at 39. Mrs.
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Sowers argues that allowing a second jury to determine punitive damages alone
will not violate the Reexamination Clause because “[p]unitive damages . . .
concern only [R.J. Reynolds’] conduct,” and the first jury, which tried the liability
issues in this case, did not evaluate R.J. Reynolds’ conduct to reach any of its
findings.11 Reply Br. at 11. Instead, she maintains, the jury in this case decided
only four issues relevant to the Reexamination Clause issue in this appeal: (1)
Engle class membership, (2) causation, (3) comparative fault, and (4)
compensatory damages. She puts it this way: “[T]he jury found that Mr. Sowers
was addicted to cigarettes containing nicotine; that his addiction, along with
smoking cigarettes manufactured by R.J. Reynolds, caused his death; that he was
50% responsible for his injuries; and that his injuries amounted to $4,250,000.”
Reply Br. at 3.
We turn now to a close look at whether the punitive damages issues to be
tried before a new jury on remand are “so distinct and separable” from the issues
decided by the first jury “that a trial of [punitive damages] alone may be had
without injustice,” or instead are “so interwoven” that the punitive damages issues
11
Mrs. Sowers also argues, as did the Searcy plaintiff, that “[p]unitive damages do not
implicate the Reexamination Clause.” Reply Br. At 3. As in Searcy, we need not resolve the
issue here because even if the issue of punitive damages can implicate the Reexamination
Clause, allowing a partial retrial on punitive damages alone in this particular case does not
violate it. See Searcy, 902 F.3d at 1357–58.
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cannot be decided alone “without confusion and uncertainty, which would amount
to a denial of a fair trial.” Champlin Refining, 283 U.S. at 500.
1. The Factual Issues that the Remand Jury Will Be
Determining in Deciding the Punitive Damages Issues
We begin by examining the factual issues the remand jury will decide.
Under Florida law a plaintiff who proves that a defendant is liable under a theory
of negligence or strict liability is entitled to compensatory damages for her injuries.
But she is not entitled to punitive damages unless she proves, by clear and
convincing evidence, that the defendant’s conduct also amounted to either
intentional misconduct or gross negligence. Fla. Stat. § 768.72(2); see also Fla.
Std. Jury Instr. 503.1b(1). “Intentional misconduct” occurs when “the defendant
had actual knowledge of the wrongfulness of the conduct and the high probability
that injury or damage to the claimant would result and, despite that knowledge,
intentionally pursued that course of conduct, resulting in injury or damage.” Fla.
Stat. § 768.72(2)(a); Fla. Std. Jury Instr. 503.1b(1); see also Burkhart v. R.J.
Reynolds Tobacco Co., 884 F.3d 1068, 1083 (11th Cir. 2018) (“[T]he jury was
required to answer questions about [the defendants’] conduct — whether [they]
had actual knowledge of their wrongdoing and nevertheless intentionally pursued
the conduct in question — upon which punitive damages liability would depend.”).
The alternative predicate for punitive damages, “gross negligence,” occurs when
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the defendant’s conduct is “so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons exposed
to such conduct.” Id. § 768.72(2)(b); Fla. Std. Jury Instr. 503.1b(1).
2. The Class Membership Findings
The jury instructions show that in deciding the class membership issue, the
first jury did not, as R.J. Reynolds contends, answer any of the factual questions
that the remand jury will have to answer before determining whether to award
punitive damages. The district court instructed the first jury that: “In order to be a
member of the Engle class, Mrs. Sowers must prove by a preponderance of the
evidence that Mr. Sowers was addicted to cigarettes containing nicotine, and that
such addiction was a legal cause of his death.” And it explained to the jury that:
“Mr. Sowers’s addiction to nicotine was a ‘legal cause’ of his death if Mrs. Sowers
proves by a preponderance of the evidence that such addiction directly and in
natural and continuous sequence produced or contributed substantially to
producing his death, so it can reasonably be said that, but for his addiction, his
death would not have occurred.”
The first jury’s class membership verdict found that Mr. Sowers was
addicted to cigarettes and that his addiction was a legal cause of his death. See
Jury Verdict on Questions 1–2. That made him a member of the Engle class, but it
does not tell us whether R.J. Reynolds acted with “actual knowledge of the
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wrongfulness of the conduct and the high probability that injury or damage to the
claimant would result and, despite that knowledge, intentionally pursued that
course of conduct.” See Fla. Stat. § 768.72(2)(a). Those are facts that the remand
jury will have to find in order to award punitive damages based on intentional
misconduct. Nor do the first jury’s findings that Mr. Sowers was addicted to
cigarettes and it caused his death tell us whether R.J. Reynolds’ conduct was “so
reckless or wanting in care that it constituted a conscious disregard or indifference
to the life, safety, or rights of persons exposed to such conduct.” See id.
§ 768.72(2)(b). Those are facts that the remand jury will have to find in order to
award punitive damages on the alternative predicate of gross negligence.
The class membership issues the first jury decided are “so distinct and
separable” from the punitive damages issues that the remand jury will be deciding
“that a trial of [the punitive damages issues] alone may be had without injustice.”
Champlin Refining, 283 U.S. at 500. The issues are not “so interwoven” that the
punitive damages issues cannot be tried separately “without confusion and
uncertainty, which would amount to denial of a fair trial.” Id. The remand jury
will not have occasion to, and will not be permitted to, reexamine the findings that
— to use R.J. Reynolds’ term –– “inhere” in the first jury’s verdict on class
membership.
3. The Comparative Fault Findings
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R.J. Reynolds also argues that “the question whether [Mrs. Sowers] is
entitled to punitive damages . . . is intimately bound up with the question of
comparative fault.” Response and Reply Br. at 36. That’s so, according to R.J.
Reynolds, because: “[b]oth issues require a jury to make a finding not just on the
existence of Reynolds’s negligence, but also the extent and nature of the negligent
conduct. The only difference is that the comparative fault issue further requires the
jury to compare Reynolds’s negligent conduct to Mr. Sowers’s own negligence.”
Id. That is how R.J. Reynolds sees it. We see it differently.
To begin with, the first jury in this case was neither asked nor permitted to
decide whether R.J. Reynolds committed the tort of negligence or to determine
how negligent the company was. Because of the Engle decision itself, once a
plaintiff’s class membership is established in an Engle progeny trial, the jury has to
take as given — it is instructed to accept as an established fact –– that the
defendant in that progeny case has been negligent. See Douglas, 110 So. 3d at
429–30 (“[T]he Second District misapplied our decision in Engle when it required
a separate causation instruction and finding for the negligence claim. . . . [T]he
Phase I jury already determined that the defendants’ conduct subjects them to
liability to Engle class members under this negligence theory. Therefore, . . .
individual plaintiffs must establish (i) membership in the Engle class; (ii)
individual causation, i.e., that addiction to smoking the Engle defendants’
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cigarettes containing nicotine was a legal cause of the injuries alleged; and (iii)
damages.”). The first jury in the present Engle progeny case was instructed in no
uncertain terms that if it found Mr. Sowers was a member of the Engle class, it had
to accept as proven a number of facts, including: “[t]hat all of the Engle defendants
were negligent.” And soon after that the jury was again instructed: “One of the
Engle findings was that the Defendants were negligent with respect to their
manufacture and sale of cigarettes and, you must accept that determination.”
There were no factual issues about R.J. Reynolds’ negligence left over from the
original Engle decision for the first jury in this individual case to decide;
negligence was already established as a matter of law for all class members in all
Engle progeny trials, including this one. And to the extent it is relevant to punitive
damages, negligence will be established through the law of the case in the punitive
damages trial on remand; the remand jury will be instructed to accept as a given
that R.J. Reynolds was negligent.
The same is true of strict liability. There were no factual issues about R.J.
Reynolds’ strict liability left over from the Engle class action case for the first jury
in this individual case to decide. Id. at 429. Strict liability was already established
as a matter of law for all class members in all Engle progeny trials who prove
individual causation, meaning that addiction to the Engle defendants’ cigarettes
containing nicotine was a legal cause of the injuries alleged. See id. (“[L]egal
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causation for the strict liability claim was established by proving that addiction to
the Engle defendants’ cigarettes containing nicotine was a legal cause of the
injuries alleged. When an Engle class member makes this showing, injury as a
result of the Engle defendants’ conduct is assumed based on the Phase I common
liability findings.”). And if it were relevant to punitive damages, strict liability
would be established through the law of the case in the punitive damages trial on
remand, and the remand jury would be instructed to accept it as given.
The first jury’s comparative fault determination in this case did not require it
to make any findings that are interwoven with any of the findings that the remand
jury will have to make in reaching a punitive damages verdict. A close look at the
Florida law on comparative fault and on punitive damages reveals that the two
determinations do not overlap. They are separable.
Florida is a pure comparative fault jurisdiction. See Fla. Stat. § 768.81(2);
Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 468 (Fla.
2005) (explaining that Florida “abolished contributory negligence in favor of the
doctrine of comparative negligence”). That means, at least where the jury does not
find for the plaintiff on any intentional tort, an Engle progeny plaintiff’s
compensatory damages award is reduced by a percentage equal to how much he
was at fault for causing his own injury. See Fla. Stat. § 768.81(2); Schoeff, 232
So. 3d at 305 (holding that “when a jury finds for an Engle progeny plaintiff on
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intentional tort claims, the plaintiff’s award may not be reduced by comparative
fault”).
Comparative fault is an affirmative defense. Bongiorno v. Americorp, Inc.,
159 So. 3d 1027, 1029 (Fla. 5th DCA 2015). To get its benefit, the defendant has
to plead and prove that even though he may have caused the injury, the plaintiff
also contributed to causing it. See Fla. Stat. § 768.81(3)(a)1–2 (requiring that
“defendant must affirmatively plead the fault of a nonparty” and “must prove at
trial, by a preponderance of the evidence, the fault of the nonparty”). In Florida
cause is equated with fault, and fault is equated with liability or is a defense to it.
Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993). One whose conduct was
entirely or partially the legal cause of an injury is entirely or partially at fault for
that injury. See Drew v. Tenet St. Mary’s, Inc., 46 So. 3d 1165, 1167 (Fla. 4th
DCA 2010) (Contributory fault concerns “conduct on the part of the plaintiff
which falls below the standard to which he should conform for his own
protection.”) (quotation marks omitted). Establishing comparative fault is akin to
proving the elements of negligence against the plaintiff. See Borenstein v. Raskin,
401 So. 2d 884, 886 (Fla. 3d DCA 1981). The defense of comparative fault is
focused entirely on whether, and to what extent, the plaintiff’s conduct was a legal
cause of his own injuries. It is not focused on how negligent the defendant was.
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The instructions on comparative fault that the court gave the first jury reflect
that. Here are those instructions:
If you find that Mrs. Sowers proved by a preponderance of the evidence
that smoking cigarettes manufactured by R.J. Reynolds was a legal cause of
Mr. Sowers’s lung cancer and death, then you must consider, only with regard
to Mrs. Sowers’s negligence and strict liability claims, the extent to which Mr.
Sowers’s own conduct was also a legal cause of such injuries. However, it is
Defendants’ burden to prove the degree to which Mr. Sowers was at fault by
a preponderance of the evidence.
Allocating a percentage of fault to Mr. Sowers will not necessarily
prevent Mrs. Sowers from recovering compensatory damages on her
negligence and strict liability claims; it will only reduce the amount that she
may recover as to those two claims. In other words, if you find that Mr.
Sowers is, for example, 50% responsible for his own injuries, you would fill
in that percentage as your finding on the verdict form. Such a finding would
not prevent Mrs. Sowers from recovering; the Court will prepare the judgment
to be entered and will reduce Mrs. Sowers’s total damages as required by law
on those two claims. Of course, by using the number 50% as an example, I
do not mean to suggest to you any specific figure at all. You might find 0%
or 100%.
After deciding the degree of fault to be allocated to Mr. Sowers, stated
in terms of a percentage, you will then decide, based upon a preponderance of
the evidence, the degree of fault to be assigned to R.J. Reynolds. The
percentage you assign to R.J. Reynolds and Mr. Sowers must total 100%.
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The first jury was not asked to examine R.J. Reynolds’ conduct in order to
measure the nature or extent of its negligence or strict liability, but instead it was
asked to find the extent to which Mr. Sowers’ own conduct was a legal cause of his
injury. And the jury was told to express Mr. Sowers’ share of the fault as a
percentage of the total fault or responsibility for the injury. That would be his
fault-based measure of responsibility for the injuries he suffered. Once the jury
determined that, it was to subtract his percentage of the fault from one hundred
percent –– simple math –– in order to determine R.J. Reynolds’ fault-based
measure of responsibility for the injury Mr. Sowers had suffered. The first jury
followed its instructions and decided that R.J. Reynolds and Mr. Sowers were each
fifty percent at fault. If that comparative fault determination were relevant to the
punitive damages determination that the remand jury will be making, it would be
law of the case that each party was fifty percent at fault, and the remand jury would
be instructed to take that as a given. As a result, the remand jury would not have to
reexamine any factual issues the first jury decided when it determined comparative
fault.
But the remand jury will not be permitted, much less required, to consider
comparative fault anyway. The comparative fault issue is not interwoven with the
punitive damages issue. The findings of the first jury about comparative fault don’t
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overlap with the findings the remand jury will have to make in deciding about
punitive damages. They are separable.
As for the intentional misconduct basis for punitive damages, the first jury’s
comparative fault instructions did not ask it to decide whether R.J. Reynolds “had
actual knowledge of the wrongfulness of the conduct and the high probability that
injury or damage to the claimant would result and, despite that knowledge,
intentionally pursued that course of conduct, resulting in injury or damage.” See
Fla. Stat. § 768.72(2)(a). Instead, the instructions asked the first jury about Mr.
Sowers’ percentage of fault, and indirectly (through subtraction) about R.J.
Reynolds’ percentage of fault. They did not ask whether R.J. Reynolds was guilty
of intentional misconduct. That is a separate question left for the remand jury to
answer. See Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1083 (11th
Cir. 2018) (noting that the jury is tasked with deciding punitive damages liability).
As for the gross negligence alternative basis for punitive damages, the first
jury’s comparative fault instructions did not ask it whether R.J. Reynolds’ conduct
was “so reckless or wanting in care that it constituted a conscious disregard or
indifference to the life, safety, or rights of persons exposed to such conduct.” See
Fla. Stat. § 768.72(2)(b). That question is left for the remand jury to decide.
Comparative fault and punitive damages are distinctly different. Fault is
about responsibility for bringing about an injury; comparative fault is about how
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much of the entire cause of the injury each party is responsible for. Comparative
fault is an affirmative defense that can reduce the amount of compensatory
damages included in the judgment; it cannot reduce the amount of punitive
damages and has no application to them. See Fla. Stand. Jury Instr. 401.22a
(noting that comparative fault as an affirmative defense); Fla. Standard Jury
Instruction 503.1c(2) (providing no mention of a claimant’s comparative fault in
determining the amount of punitive damages). Punitive damages are about
whether a defendant should be punished by being forced to pay more than the
amount necessary to compensate the plaintiff for the injury the defendant has
caused. See Soffer, 187 So. 3d at 1222 (“The jury is instructed that, based on the
allegedly intentional misconduct or gross negligence, it must determine whether
punitive damages are warranted ‘as punishment’ against the defendant and ‘as a
deterrent to others.’”). Compensatory damages are not designed to punish or to
deter. Am. Cyanamid Co. v. Roy, 498 So. 2d 859, 861 (Fla. 1986) (Punitive
damages “are assessed in a dramatically different manner than compensatory
damages,” and they are “based not on the plaintiff's actual damages but upon the
wealth of the defendant and the perceived need to punish and deter.”). Punitive
damages are focused entirely on the defendant and its conduct. Compensatory
damages are not.
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In summary, the findings underlying the first jury’s comparative fault verdict
are concerned solely with determining the amount of compensatory damages that
will be awarded. Those findings do not overlap with the punitive damages
findings that the remand jury will be called on to make (about whether R.J.
Reynolds engaged in intentional misconduct or was grossly negligent) in the
course of deciding whether to punish R.J. Reynolds and attempt to deter others
from similar conduct. The issues are “so distinct and separable” that they may be
tried separately “without injustice”; they are not “so interwoven” that they cannot
be tried separately “without confusion and uncertainty, which would amount to
denial of a fair trial.” Champlin Refining, 283 U.S. at 500.
4. The Compensatory Damages Determination
We have saved R.J. Reynolds’ worst argument for last. Bear in mind that
the first jury was instructed that in determining the amount of compensatory
damages it “should assess the amount you find to be justified by a preponderance
of the evidence as full, just and reasonable compensation for all of the damages for
Mr. Sowers’s lung cancer and death, no more and no less.” And it was further
instructed that: “Compensatory damages are not allowed as a punishment and must
not be imposed or increased to penalize the Defendants.”
Still, R.J. Reynolds contends that the amount of punitive damages that the
remand jury will assess is intertwined with the first jury’s compensatory damages
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assessment because once the first jury found against Mrs. Sowers on the fraud
claims it knew that it could not award her any punitive damages. The jury knew
that it couldn’t because it had been told that based on the existing law at the time.
As a result, R.J. Reynolds speculates, conjectures, and assumes that the first jury in
this case “might have adjusted [its compensatory damages award] upward knowing
that [Mrs. Sowers] would receive no punitive damages.” Response and Reply Br.
at 39. Even though the jury was emphatically instructed not to do so.
In other words, R.J. Reynolds thinks we ought to presume that the jurors in
the first trial violated their oath and flouted their instructions. This is R.J.
Reynolds’ worst argument because:
We not only can, but we must, presume that juries follow their
instructions. The presumption that they do is rock solid law enshrined
in a host of decisions of the Supreme Court and this Court. See, e.g.,
Kansas v. Carr, ––– U.S. ––––, 136 S. Ct. 633, 645 (2016); Penry v.
Johnson, 532 U.S. 782, 799 (2001); Weeks v. Angelone, 528 U.S. 225,
234 (2000); Richardson v. Marsh, 481 U.S. 200, 206–07 (1987)
(referring to “the almost invariable assumption of the law that jurors
follow their instructions, which we have applied in many varying
contexts.”) (citation omitted); Francis v. Franklin, 471 U.S. 307, 324
n.9 (1985) (recognizing “the crucial assumption underlying our
constitutional system of trial by jury that jurors carefully follow
instructions”); United States v. Zitron, 810 F.3d 1253, 1255–58 (11th
Cir. 2016); Greene v. Upton, 644 F.3d 1145, 1157 (11th Cir. 2011);
Puiatti v. McNeil, 626 F.3d 1283, 1314–15 (11th Cir. 2010).
In re Price, 964 F.3d 1045, 1049 (11th Cir. 2020). If bad arguments could blush, this
one would be radiantly red.
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VII. IMMEDIATE PAYMENT OF THE COMPENSATORY
DAMAGES AWARD AFTER THE MANDATE ISSUES
In the last paragraph of the last brief she filed in this appeal, Mrs. Sowers
states that if we order the case remanded for a trial on the punitive damages issues
alone, as we are doing, she “intends to enforce the compensatory damages
judgment before the punitive damages retrial occurs.” Reply Br. at 29. We take
that as a request that we direct the district court to order execution on the
compensatory damages part of the judgment immediately after issuance of the
mandate in this appeal. We will.
Courts have done this sort of thing before. See Dempsey By & Through
Dempsey v. United States, 32 F.3d 1490, 1497–98 (11th Cir. 1994) (Carnes, J.,
concurring) (explaining why this Court had entered an immediate affirmance of the
uncontested part of a monetary judgment in that case and ordered that amount paid
then, instead of allowing it to go unpaid until the appeal of the contested part of the
judgment was completed); Barnes v. United States, 678 F.2d 10, 11, 13 (3d Cir.
1982) (entering over the objection of the government a partial summary affirmance
of the uncontested part of a FTCA damages judgment so the plaintiff could collect
it before the appeal of the contested part was decided on appeal); Carter v. United
States, 333 F.3d 791, 793 (7th Cir. 2003) (recounting that it had entered a partial
affirmance in the plaintiff’s favor for the uncontested part of the judgment on
appeal, even though her appeal of the district court’s reduction in the amount of
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another award had still been pending); King Instrument Corp. v. Otari Corp., 814
F.2d 1560, 1563 (Fed. Cir. 1987) (explaining that “[i]t was therefore not incorrect
or an abuse of discretion for the trial judge to order execution on that portion of the
judgment which was final” after having been affirmed on appeal, before disposing
of the remaining issue that had been remanded to it).
And Congress has authorized federal courts of appeals to “remand the cause
and direct the entry of such appropriate judgment, decree, or order, or require such
further proceedings to be had as may be just under the circumstances.” 28 U.S.C.
§ 2106. This litigation, including the original class action, has been going on for a
quarter of a century. When it began Mrs. Sowers was in her sixties. She is now in
her mid-nineties. The part of the judgment we are affirming establishes that R.J.
Reynolds owes Mrs. Sowers $2,125,000 for the injuries the company has caused
her. It is “just under the circumstances” that R.J. Reynolds pay her what it owes
her, and sooner rather than later.
When and if our decision affirming the compensatory damages part of the
judgment of the district court becomes final, the district court on remand is
directed to see that the compensatory damages award, plus any applicable interest
or other amounts due because of the award, is paid forthwith after issuance of the
mandate instead of being delayed until after disposition of the punitive damages
issues.
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VIII. CONCLUSION
The district court did not err in preventing R.J. Reynolds from presenting
evidence of the Sowers’ divorce and remarriage or in denying R.J. Reynolds a new
trial based on arguments Mrs. Sowers’ counsel made in closing. We affirm the
district court’s judgment on compensatory damages. And that judgment, plus any
applicable interest and other amounts, must be paid expeditiously after the mandate
issues in this appeal.
The district court did err, through no fault of its own, in denying Mrs.
Sowers the opportunity to seek punitive damages on her negligence and strict
liability claims. We vacate that part of its judgment and remand for a trial limited
to the punitive damages issue.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
WITH INSTRUCTIONS.
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