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