BENTON, C.J.
As personal representative of the estate of her father, James Cayce Horner — a long-time smoker of cigarettes manufactured by R.J. Reynolds Tobacco Company (RJR) who died of lung cancer — Diane Webb filed a wrongful-death action against RJR alleging membership in the class described in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), strict liability, fraud by concealment, conspiracy to commit
RJR argues for reversal on multiple grounds. It contends that (1) the trial court dealt with its statute of limitations defense improperly; (2) the compensatory damage award should be set aside as excessive or be remitted; (3) the punitive damage award should be set aside because the trial court erred in permitting the jury to rely on the Engle findings in determining entitlement and as excessive, or should at least be remitted; (4) the statute of repose and federal preemption operate in combination to bar all concealment and conspiracy claims; (5) Ms. Webb failed to prove Mr. Horner reasonably relied on any statement or omission by any Engle defendant; and (6) use of the Engle findings to establish elements of Ms. Webb's claims violated Florida law and state and federal due process requirements.
On the basis of recent, definitive precedent, we summarily reject RJR's last three arguments. First, as regards the combined effect of the statute of repose and federal preemption, we are bound by our supreme court's decision in Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 940 (Fla.2000) (concluding the Public Health Cigarette Smoking Act of 1969 does "`not preempt petitioner's claims that rely solely on respondent's testing or research practices or other actions unrelated to advertising or promotion,'" "`does not preempt fraudulent misrepresentation claims,'" and "`does not preempt conspiracy to defraud claims'" (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 524-30, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992))). See also Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076, 1079 (Fla. 2d DCA 2000) ("In claims alleging conspiracy, the critical date for statute of repose purposes should be the date of the last act done in furtherance of the conspiracy.").
Applying the doctrine of stare decisis, we also reject RJR's argument that Ms. Webb failed to establish her father's reliance on RJR's (mis)statements and omissions concerning the effects smoking tobacco can have on smokers' health. Here as in R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1069 (Fla. 1st DCA 2010), review denied, 67 So.3d 1050 (Fla.2011), "the record contains abundant evidence from which the jury could infer [Mr. Horner's] reliance on pervasive misleading advertising campaigns ... and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health." Finally, our decision in Martin forecloses RJR's argument that using the Engle findings in establishing elements of Ms. Webb's claims violated both Florida law and federal and state due process requirements. See id. at 1066-69.
Nor do we find merit in RJR's argument that the trial court improperly rejected its statute of limitations defense. RJR argued the action was time-barred under the statute of limitations by virtue of the "first-injury rule," invoking "the long-standing rule generally applicable to personal injury claims [that] `the cause of
We find no error in this ruling. It comports with the Third District's rationale in Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1985), where a plaintiff who suffered from asbestosis, but not cancer, sought to recover damages not only for asbestosis but also for the enhanced risk of cancer as the result of exposure to asbestos. After a scholarly discussion of the rule against splitting causes of action,
The court observed that asbestosis and cancer are medically distinct diseases even though they may emanate from the same exposure to asbestos. Id. at 522. Noting thousands of pending asbestos claims and the long latency period for asbestos-related cancer, the court concluded:
Id. at 525-26. Our supreme court stated with regard to tobacco in Carter, 778 So.2d at 936-37:
"[M]anifestation' of a latent injury in a products liability claim occurs when the plaintiff is on notice of a causal connection between exposure to the allegedly defective product and the resultant injury." Barnes v. Clark Sand Co. Inc., 721 So.2d 329, 332 (Fla. 1st DCA 1998).
Smoking cigarettes may cause more than one kind of injury. See Pooshs v. Philip Morris USA, Inc., 51 Cal.4th 788, 123 Cal.Rptr.3d 578, 250 P.3d 181, 190-91 (2011) (concluding that "when a later-discovered latent disease is separate and distinct from an earlier-discovered disease, the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease" and therefore "no good reason appears to require plaintiff, who years ago suffered a smoking-related disease that is not lung cancer, to sue at that time for lung cancer damages based on the speculative possibility that lung cancer might later arise").
Applying Rhode Island law in Nicolo v. Philip Morris, Inc., 201 F.3d 29, 35 (1st Cir.2000), the court noted that requiring a strict application of the rule against splitting causes of action "would place, as other courts have observed, a victim in an impossible position."
Id. The First Circuit recited "a number of characteristics of cancer that militate against requiring a possible victim, even though an addicted smoker, to make an early decision to commence litigation. The causes of cancer are various, by no means confined to prolonged smoking. Nor is cancer an inevitable result of such smoking. Often its incidence defies foreseeability. It is quite different from afflictions of shortness of breath, emphysema, or other respiratory difficulties. It is of a different magnitude.... Unlike impairments to breathing, cancer does not lend itself to lay identification." Id. at 36.
In the present case, the controlling question was when Mr. Horner knew or should have known that he had smoking-related lung cancer, not COPD, and the trial court so ruled. RJR did not establish that merely learning of his COPD diagnosis meant Mr. Horner knew or should have known he had lung cancer. A person with COPD may or may not develop lung cancer, according to evidence the trial court
Finding that Ms. Webb sustained $8 million in compensatory (noneconomic) damages and that RJR was 90% responsible for Mr. Horner's death, the jury awarded an additional $72 million in punitive damages. In the aggregate, the award was $79.2 million. The trial court denied RJR's motions for new trial or remittitur, and entered judgment on the verdict.
Courts should not "allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial." McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003). Upon the filing of RJR's motion for new trial or remittitur, the trial court had to review the amount of damages to determine if the award was excessive "in light of the facts and circumstances which were presented to the trier of fact." § 768.74(1), Fla. Stat. (2010). In determining whether an award is excessive, a trial court is required to consider the following criteria:
§ 768.74(5), Fla. Stat. (2010). "The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of this state." § 768.74(6), Fla. Stat. (2010).
Under Florida law, a trial court's order denying a motion for remittitur is reviewed by an appellate court under an abuse of discretion standard. See Engle, 945 So.2d at 1263; City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008). "The trial court does not sit as a seventh juror. Neither does the reviewing court reserve the prerogative to overturn a damages verdict with which it merely disagrees." Dyes v. Spick, 606 So.2d 700, 702 (Fla. 1st DCA 1992) (citations omitted). "[I]n determining the adequacy of a verdict the reviewing court must decide whether a jury of reasonable men could have returned that verdict. The use of the
In reviewing an award of damages for excessiveness, the court may consider the philosophy and general trend of decisions in comparable cases. See Aills v. Boemi, 41 So.3d 1022, 1028 (Fla. 2d DCA 2010) ("The comparison of jury verdicts reached in similar cases provides one method of assessing `[w]hether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.' § 768.74(5)(d)."). See also Johnson v. U.S., 780 F.2d 902, 908 (11th Cir. 1986) ("[E]xcessiveness may be tested by comparing the verdict to those damage awards determined not to be excessive in similar cases."); McQuillin, 840 So.2d at 347 (reviewing "the awards in other cases for loss of a child, parent or spouse" in determining whether award is so excessive as to shock the judicial conscience).
Only noneconomic damages were awarded in the present case. Recovery was authorized "for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury." § 768.21(3), Fla. Stat. (1996). Of the thirty-five Engle cases we examined in which the jury awarded compensatory damages,
Ms. Webb points to the verdict in Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997), an award that never received the imprimatur of an appeals court. There Armando Alejandre was on a humanitarian mission, searching for rafters in the waters between Cuba and the Florida Keys, when the Cuban Air Force shot down the civilian plane in which he was flying. Forty-five years old at the time of his death, Mr. Alejandre was survived by his wife of twenty-one years and his daughter Marlene, a college student.
The present case differs in many respects. Experts aside, only four witnesses, including Ms. Webb, testified at trial. All four testified regarding the 1986 death of Ms. Webb's first husband from a heart attack, the 1993 death of Ms. Webb's mother from lung cancer, and the death of Ms. Webb's grandmother (Mr. Horner's mother) from emphysema. All four of these witnesses attributed all of these illnesses and deaths to cigarette smoking.
The jury also heard much testimony from each of these four witnesses about Ms. Webb's personal medical difficulties and about the close relationship she had with Mr. Horner and how helpful he was during the life-long illness and death of Ms. Webb's first-born child. The jury heard that Ms. Webb married when she was nineteen; that she lived with her then husband, a member of the United States Air Force, in England from 1961 through 1963; that their first child, Venetia, was born in 1963 with a rare chromosomal disorder (Trisomy Edwards 18); that her husband was given a compassionate reassignment; that during the ambulance flight from England, the plane was not properly pressurized; and that this resulted in Ms. Webb's becoming deaf.
The jury heard uncontroverted evidence from which it further appeared: Upon their return from England, when Ms. Webb and her husband lived at Homestead Air Force Base for a year, she could not leave the house unless someone else was in the house with Venetia. She was also experiencing other problems related to her hearing loss during this time. Her mother and father, who lived in Miami, came to Ms. Webb's house to assist four or five times each week. Later Ms. Webb and her husband purchased a home in Miami, across the street from her parents, and she saw her parents, who continued to help
Venetia had to be fed like an infant; she was never able to walk or talk, and could not even sit unassisted. When she died in 1977 at the age of thirteen, she weighed only 25 pounds. Without her parents' assistance, Ms. Webb would not have been able to care for her two younger children, who spent a significant amount of time at Mr. Horner's home, in part because of Venetia's medical difficulties. Because Venetia had a compromised immune system, the two younger children would stay at Mr. Horner's home when they caught colds.
The amount of the compensatory damages suggests an award that is the product of passion, an emotional response to testimony regarding difficulties Ms. Webb and her father faced and overcame before cancer befell him, rather than evidence of his illness, subsequent death, and the noneconomic consequences of the death itself. Mr. Horner outlived the grandchild he had been such a help with. Ms. Webb, who was 54 years old when her father died at the age of 78, was not wholly dependent on his companionship, instruction and guidance at that time. She was married, with two adult children and grandchildren, as well.
Although not determinative, the fact that the jury awarded double the amount of compensatory damages requested by Ms. Webb's counsel and assigned to Mr. Horner half of the percentage of fault her counsel acknowledged during closing argument suggests the jury was influenced by prejudice or passion. While a "`jury might properly award damages equal to or in excess of those requested by counsel in closing argument,' ... it is common practice for attorneys to suggest damages well in excess of the amount that could be sustained under the facts in the case." Nat'l R.R. Passenger Corp. (Amtrak) v. Ahmed, 653 So.2d 1055, 1059 (Fla. 4th DCA 1995) (quoting Lopez v. Cohen, 406 So.2d 1253, 1256 (Fla. 4th DCA 1981)). See also Gresham v. Courson, 177 So.2d 33, 39 (Fla. 1st DCA 1965) ("A verdict is not per se excessive because the jury awards the full amount of damages suggested by counsel for the prevailing party, but we would be exceedingly naive should we fail to recognize that as a matter of practice the advocate usually suggests to the jury a figure for damages substantially in excess of the amount that is clearly supportable by the evidence and likewise in excess of the amount which he deems to be supportable in point of law should the jury happen to return a verdict approaching the amount suggested."). Certainly the compassion Mr. Horner exhibited during his lifetime, and Ms. Webb's deafness and devotion both to him and her first born, could inspire sympathy and admiration. In the circumstances, however, the compensatory damages award is more than the evidence at trial reasonably supports and "shocks the judicial conscience." The trial court abused its discretion when it denied RJR's motion for remittitur or new trial.
Because the award of compensatory damages must be vacated, we also vacate the award of punitive damages. See Engle, 945 So.2d at 1265 ("`[C]ourts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.' Thus, the amount of compensatory damages must be determined in advance of a determination of the amount of punitive damages awardable, if any, so that the relationship between the two may be reviewed for reasonableness." (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S.Ct. 1513,
We reverse both the compensatory and the punitive damage awards and remand the case with directions that the trial court grant the motion for remittitur or order a new trial on damages only. We affirm the judgment in all other respects.
VAN NORTWICK and SWANSON, JJ., concur.