Philip Morris USA, Inc. v. Cuculino

Third District Court of Appeal
State of Florida
Opinion filed May 06, 2015.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D14-1339 & 3D14-823
Lower Tribunal No. 10-62733
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Philip Morris USA, Inc.,
Appellant/Cross-Appellee,
vs.
Antonio Cuculino,
Appellee/Cross-Appellant.
Appeals from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Boies, Schiller & Flexner LLP, and Stephen N. Zack and Andrew S.
Brenner; Shook, Hardy & Bacon LLP, and J. Daniel Gardner; Arnold & Porter
LLP, and Geoffrey J. Michael (Washington, DC), for appellant/cross-appellee.
The Ferraro Law Firm, P.A., and James L. Ferraro and David A. Jagolinzer,
for appellee/cross-appellant.
Before WELLS, ROTHENBERG, and EMAS, JJ.
ROTHENBERG, J.
Philip Morris USA, Inc. (“Philip Morris”) appeals a final judgment entered
after a jury verdict in favor of the plaintiff below, Antonio Cuculino (“Mr.
Cuculino”), and from the denial of several post-trial motions. Mr. Cuculino cross-
appeals the trial court’s order granting Philip Morris’s motion for partial summary
judgment, thereby precluding Mr. Cuculino from seeking punitive damages as to
his non-intentional tort claims of negligence and strict liability, and the order
denying his motion for attorney’s fees filed pursuant to section 768.79, Florida
Statutes, and Florida Rule of Civil Procedure 1.442. Finding no reversible error,
we affirm.
Mr. Cuculino filed an Engle-progeny1 action against Philip Morris and R.J.
Reynolds Tobacco Company (“R.J. Reynolds”), alleging that Mr. Cuculino’s
coronary heart disease resulted from smoking cigarettes manufactured by Philip
Morris and R.J. Reynolds. The complaint asserted causes of action for fraudulent
concealment, conspiracy to fraudulently conceal, negligence, and strict liability.
Prior to the commencement of trial, the trial court granted Philip Morris’s and R.J.
Reynolds’s motion for partial summary judgment, thereby precluding Mr.
Cuculino from seeking punitive damages on his non-intentional tort claims of
negligence and strict liability.
1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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Following a two-week trial, the jury returned a verdict fully exonerating R.J.
Reynolds, but finding against Philip Morris on Mr. Cuculino’s negligence and
strict liability claims. The jury awarded Mr. Cuculino $12.5 million in damages,
but attributed 40% of the fault to Philip Morris and 60% of the fault to Mr.
Cuculino. The jury, however, returned a verdict in favor of Philip Morris as to Mr.
Cuculino’s claims for fraudulent concealment and conspiracy to fraudulently
conceal. Because the trial court had previously ruled that Mr. Cuculino could not
seek punitive damages on his negligence and strict liability claims, and because the
jury found against Mr. Cuculino on his claims for fraudulent concealment and
conspiracy to fraudulently conceal, the jury did not consider punitive damages.
Following the jury’s verdict, Philip Morris filed several post-trial motions,
including a motion for new trial, asserting that Mr. Cuculino’s counsel made
improper and prejudicial comments during closing arguments. The trial court
denied Philip Morris’s post-trial motions and thereafter entered final judgment in
favor of Mr. Cuculino and against Philip Morris in the amount of $5 million.
These appeals followed.
Philip Morris contends the trial court abused its discretion by denying its
motion for new trial where Mr. Cuculino’s counsel made improper and prejudicial
comments during closing argument. Although we agree that the comments were
improper, we nonetheless find no reversible error as the comments were not so
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highly prejudicial and inflammatory that Philip Morris was denied its right to a fair
trial.
During oral argument, Mr. Cuculino’s appellate counsel properly and
commendably acknowledged that the complained-of comments were improper.
During closing argument, Mr. Cuculino’s counsel explained to the jury that people
get paid for the time they work, including actors, who make “astronomical sums,”
professional athletes, who make “tremendous sums,” and expert witnesses, who
make $750 per hour. Defense counsel objected, and the trial court sustained the
objection. Thereafter, Mr. Cuculino’s counsel stated that Philip Morris and R.J.
Reynolds gave Mr. Cuculino the “job” of “suffer[ing] from progressive heart
disease,” and he deserves to get paid for this “job.” Mr. Cuculino’s counsel then
stated: “You know, what is it that’s going to be a just and appropriate figure?
Who in their right mind would want to trade places with Mr. Cuculino and take
this job.” Defense counsel objected, and the trial court sustained the objection.
Immediately thereafter, Mr. Cuculino’s counsel continued this line of argument by
stating: “Would someone do it for a million dollars an hour? Probably not.
Would someone do it for anything? Probably not.” Defense counsel objected and
moved for a mistrial. The trial court sustained defense counsel’s objection and
instructed the jury as follows: “Only the jury gets to choose or determine what is
fair and adequate compensation. Does everybody understand that?” The jury
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answered in the affirmative. The trial court, however, did not instruct the jury to
disregard these comments, and neither Philip Morris nor R.J. Reynolds requested
such an instruction.
Whether through overzealousness or otherwise, Mr. Cuculino’s counsel
made comments during closing argument that we do not condone, and trial counsel
would be well-advised not to utilize such arguments in future closing arguments.
Nonetheless, despite Mr. Cuculino’s appellate counsel’s acknowledgement at oral
argument that the comments were improper, he vigorously argued that the trial
court did not abuse its discretion by denying Philip Morris’s post-trial motion for
new trial because the comments were not so highly prejudicial and inflammatory
that Philip Morris was denied its right to a fair trial. See Engle v. Liggett Grp.,
Inc., 945 So. 2d 1246, 1271 (Fla. 2006) (“A trial court’s order granting or denying
a motion for new trial based on either objected-to or unobjected-to improper
argument is reviewed for an abuse of discretion.”). We agree.
“If the issue of an opponent’s improper argument has been properly
preserved by objection and motion for mistrial, the trial court should grant a new
trial if the argument was ‘so highly prejudicial and inflammatory that it denied the
opposing party its right to a fair trial.’” Id. (quoting Tanner v. Beck, 907 So. 2d
1190, 1196 (Fla. 3d DCA 2005)). In arguing that the comments were “so highly
prejudicial and inflammatory” that it was denied a fair trial, Philip Morris asserts
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that the jury’s $12.5 million verdict is “grossly excessive” and has “no logical
nexus to the evidence presented.” In support, Philip Morris emphasizes that the
jury’s $12.5 million verdict is $2.5 million more than the maximum requested by
Mr. Cuculino’s counsel during closing argument. Philip Morris’s assertion,
however, is not entirely accurate. Despite asking the jury to award $10 million,
Mr. Cuculino’s counsel clarified in his closing argument that the $10 million figure
did not include future damages and that the jury could award more or less than the
$10 million figure:
You might go lower, you might want to go higher. But what I’m
saying is, confine yourselves to the period of time that Mr. Cuculino
was ill with heart disease from 1994 up until the time in 2009 that he
quit. It’s up to you. You might decide, no, he’s entitled to future
damages.
Nonetheless, even if Mr. Cuculino’s counsel would have asked the jury to award
no more than $10 million, “a jury may properly award damages equal to or in
excess of those requested by counsel in closing argument.” Rudy’s Glass Constr.
Co. v. Robins, 427 So. 2d 1051, 1053 (Fla. 3d DCA 1983). Further, “[t]he
magnitude of a damage award, without more, is no indication that the jury was
motivated by improper consideration in arriving at the award.” Id.
Contrary to Philip Morris’s assertion, the verdict reflects that the jury was
not inflamed or highly prejudiced by the improper comments because the jury did
not completely find in favor of Mr. Cuculino. First, the jury entered a verdict fully
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exonerating defendant R.J. Reynolds. Second, the jury found in favor of Philip
Morris on Mr. Cuculino’s intentional tort claims, thereby precluding the jury from
reaching the issue of punitive damages, which is often substantially more than
compensatory damages in Engle-progeny cases. Finally, the jury found that Mr.
Cuculino was 60% at fault, thereby substantially reducing the $12.5 million verdict
to an award of only $5 million.
Furthermore, based on the record before this Court, we cannot say that there
is no nexus between the jury’s award and the evidence presented. Specifically, the
record demonstrates that Mr. Cuculino (1) suffered a heart attack in 1994 at the age
of forty-nine; (2) underwent an angioplasty in 1995; (3) suffered a serious incident
in 1999 that required him to be airlifted from Key West to Mount Sinai Medical
Center in Miami where he underwent a quadruple bypass surgery; (4) became very
depressed after the quadruple bypass and, as a result, was placed on anti-depressant
medication; (5) underwent a procedure in 2013 where three stents were placed into
two different arteries; (6) suffers from atherosclerosis; (7) has had approximately
twenty catheterization procedures; (8) requires ongoing aggressive intervention
and medical therapy, including taking twelve pills per day for his heart; (9) suffers
from shortness of breath and tightness in the chest after walking half a block; (10)
has restricted his activities due to his fear that he will suffer another heart attack
despite his physician’s advice to return to a normal level of activity and to exercise
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regularly; and (11) sold his boat because he fears suffering a heart attack at sea. In
addition, Mr. Cuculino’s expert witness testified that Mr. Cuculino is at risk for a
subsequent coronary event which could cause death. In summary, although we
disapprove of these few comments made by Mr. Cuculino’s counsel during his
105-minute closing argument, the jury’s verdict reflects that the comments were
not so highly prejudicial and inflammatory that Philip Morris was denied its right
to a fair trial.
Lastly, on cross-appeal, Mr. Cuculino contends the trial court erred by
precluding him from seeking punitive damages for his negligence and strict
liability claims and by denying his motion for attorney’s fees based on his offer of
judgment and the jury’s verdict. Based on this Court’s recent decision in R.J.
Reynolds Tobacco Co. v. Williams, 39 Fla. L. Weekly D1863 (Fla. 3d DCA Sept.
3, 2014), which adopted the First District Court of Appeal’s decision in Soffer v.
R.J. Reynolds Tobacco Co., 106 So. 3d 456 (Fla. 1st DCA 2012), review granted,
139 So. 3d 887 (Fla. 2014), the trial court correctly ruled on Philip Morris’s motion
for partial summary judgment precluding Mr. Cuculino from seeking punitive
damages on his negligence and strict liability claims. And, as to the attorney’s fees
issue, Mr. Cuculino’s counsel properly and commendably conceded at oral
argument that Mr. Cuculino is not entitled to his attorney’s fees because his
proposal for settlement did not strictly comply with the requirements set forth in
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section 768.79 and rule 1.442 based on binding case law interpreting the offer of
judgment statute.
The remaining issues raised by Philip Morris do not merit discussion.
Accordingly, we affirm the final judgment entered in favor of Mr. Cuculino and
against Philip Morris and the orders denying Philip Morris’s post-trial motions; the
order granting Philip Morris’s motion for partial summary judgment precluding
Mr. Cuculino from seeking punitive damages on his non-intentional tort claims;
and the order denying Mr. Cuculino’s motion for attorney’s fees.
Affirmed.
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