CONNER, J.
This is an Engle
The Plaintiff brought suit against the Tobacco Companies for the wrongful death of her mother, Margot Putney. In her second amended complaint, the Plaintiff alleged Margot's death was the result of small cell carcinoma of the lung and alleged claims of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. The Plaintiff sought recovery for the estate and for loss of consortium for herself and her two adult siblings. The Plaintiff also sought punitive damages.
Prior to trial, the trial court granted the Plaintiff's motion for summary judgment and determined that all of the Tobacco Companies' affirmative defenses, including the statute of repose, were not viable based on the preclusive Engle findings.
The jury returned a verdict finding for the Plaintiff on negligence, strict liability, and conspiracy to commit fraud by concealment. The jury found for the Tobacco Companies on the fraud by concealment claim. The jury found R.J. Reynolds 30% responsible for Margot's death, Philip Morris 15% responsible, Liggett 20% responsible, and Margot herself 35% responsible. The jury awarded Margot's estate $86,688.96 for medical and funeral expenses and five million dollars to each of Margot's three surviving children for loss of consortium. Further, the jury found punitive damages were warranted against R.J. Reynolds and Philip Morris, but not Liggett, on the conspiracy claim and assessed $2.5 million against each of them.
Post-trial, the trial court denied the Tobacco Companies' motion for a judgment in their favor on the conspiracy count. The trial court also denied their motion for remittitur on the consortium award by the jury.
The Tobacco Companies argue that the trial court erred in denying their post-trial motion for judgment on the conspiracy to commit fraudulent concealment claim because the Plaintiff presented insufficient evidence to support the claim. More particularly,
"The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff." Id. (citing Liappas v. Augoustis, 47 So.2d 582, 582 (Fla.1950)). However, in Palm Beach County Health Care District, we made reference to an exception to the general rule, citing Liappas and Snipes v. W. Flagler Kennel Club, Inc., 105 So.2d 164, 165 (Fla.1958). 13 So.3d at 1096 n. 3. In Liappas, our supreme court recognized an independent tort of conspiracy "where mere force of numbers acting in unison or other exceptional circumstances may make a wrong." Liappas, 47 So.2d at 583 (citing DesLauries v. Shea, 300 Mass. 30, 13 N.E.2d 932 (1938)). The court said, "in order to prove an independent tort for conspiracy upon the basis of `mere force of numbers acting in unison,' it must be shown that there was some `peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had.'" Id. (citation omitted).
Three Engle findings relevant to this case are entitled to res judicata effect: "(ii) `that nicotine in cigarettes is addictive;'... (iv) `that the [Engle] 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;' (v) `that the [Engle] 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[.]'" Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 434 (Fla.2013). In combination, those Engle findings preclusively establish the Tobacco Companies engaged in a conspiracy to conceal or omit information regarding the health effects of cigarettes and their addictive nature with the intention that smokers and the public would rely on the information to their detriment. The Engle findings also establish there were other companies besides the Tobacco Companies involved in this case, including other companies producing tobacco products, who were co-conspirators. Id. Given the number of co-conspirators involving the major players in the tobacco industry, the breadth of the conspiracy, and the addictive nature of cigarettes, we conclude that the conspiracy sued upon in this case is an independent tort of conspiracy "where mere force of numbers acting in unison or other exceptional circumstances may make a wrong." The unified actions of the conspirators, coupled with the addictive nature of cigarettes, resulted in the
Regarding the contention that the Plaintiff failed to prove that Margot relied upon any statements made by any of the co-conspirators, the Plaintiff points out that the jury verdict included the following two questions:
(emphasis added). The Plaintiff then argues that R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), supports the denial of a judgment in favor of the Tobacco Companies on this issue of proof of reliance. We agree. Similar to the situation in Martin, the record in this case contains sufficient evidence from which the jury could decide that Margot relied (1) on pervasive misleading advertising campaigns for cigarettes in general and (2) on the false controversy created by the tobacco industry during the years she smoked (aimed at creating doubt among smokers that cigarettes were hazardous to health) without the necessity of proving Margot relied on any specific statement from a specific co-conspirator. See also Philip Morris USA, Inc. v. Kayton, 104 So.3d 1145 (Fla. 4th DCA 2012) (despite the plaintiff's inability to recall a specific statement by an Engle conspirator, her testimony that relied on billboard and magazine advertising was sufficient to deny a post-trial motion for directed verdict); Philip Morris USA Inc. v. Cohen, 102 So.3d 11, 14 n. 2 (Fla. 4th DCA 2012); R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla. 1st DCA 2012). Thus, we hold the trial court did not err in denying the Tobacco Companies' motion for judgment in their favor on the conspiracy claim.
The Tobacco Companies argue that the trial court abused its discretion in not granting their motion for remittitur on the five million dollar awards to each of the three surviving children for loss of consortium. They contend the awards are excessive compared to those in similar cases and were improperly motivated by passion and prejudice. A trial court's ruling on a motion for remittitur is reviewed for abuse of discretion. City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008). "Remittitur cannot be granted unless the amount of damages is so excessive that it shocks the judicial conscience and indicates that the jury has been influenced by passion or prejudice." Progressive Select Ins. Co. v. Lorenzo, 49 So.3d 272, 278 (Fla. 4th DCA 2010) (citations omitted) (internal quotation marks omitted).
"Under Florida law an award of non-economic damages must bear a reasonable relation to the philosophy and general trend of prior decisions in such cases." Cohen, 102 So.3d at 14 (quoting Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir.2008)). The Plaintiff argues the verdict is not excessive, relying on Martin, in which the surviving spouse was awarded five million dollars in compensatory damages. Putney also cites to some unpublished jury verdicts, including an eight million dollar compensatory damages verdict
Id. at 337-38.
As noted by the Tobacco Companies, all of Margot's children were adults at the time of her diagnosis and death, and none of them testified that they lived with her or relied on her for support. Appellate decisions that have upheld large consortium awards in tobacco cases involve much closer relationships between the parties and the decedents during the decedent's illness. For example, in R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307 (Fla. 1st DCA 2012), the First District upheld a 10.8 million dollar compensatory award to the wife of the deceased smoker. They had been married for 39 years. The wife had to stay in Florida while the husband traveled to Chicago for treatment in order to support the family and then had to personally care for him "as he lay dying during the final six months." Id. at 312. The husband was diagnosed just as the wife was about to retire, so they could not "realize their life-long dream of traveling together." Id.
The Plaintiff argues the loss of consortium awards were supported by the evidence presented at trial. One of Margot's sons testified how he visited his mother as often as he could once he heard of her lung cancer diagnosis, but it was difficult to do because he had his own family. He further testified that his mother never forgot birthdays and she gave all three of her children a goodbye letter on her last birthday. Another of Margot's sons testified that his mother's diagnosis had an emotional impact on him, and he would visit or call every day. Not surprisingly, he misses his mother most on special occasions such as holidays and birthdays. The Plaintiff, Margot's daughter, testified that when she learned of her mother's diagnosis, she was too emotional to talk about it. She accompanied her mother to chemotherapy treatments, which "killed" her on the inside, because it made her think about losing her mother. The Plaintiff also told the jury how her mother was so ill on the Plaintiff's birthday that her mother could not say "happy birthday," and she went into a coma soon after, dying nine days later. The Plaintiff's boyfriend testified how upset the Plaintiff had been since her mother's death and how it devastated her.
While the above testimony may establish that Margot's adult children are entitled to a consortium award, we agree with the Tobacco Companies' argument that the loss of consortium awards were excessive compared to those in similar cases and shock the judicial conscience because none of them testified that they lived with her or relied on her for support. The trial court erred in failing to grant remittitur.
Similar to arguments raised in Kayton, the Tobacco Companies argue in
We affirm the trial court's denial of the Tobacco Companies' motion to set aside the verdict and for judgment in their favor on the conspiracy claim. We hold the trial court erred in failing to grant the motion for remittitur as to the loss of consortium award and in striking the Tobacco Companies' statute of repose affirmative defense. We remand the case for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings.
TAYLOR and LEVINE, JJ., concur.