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Burkhart v. R.J. Reynolds Tobacco Co.

United States Court of Appeals, Eleventh Circuit

March 7, 2018

PAULINE BURKHART, Plaintiff - Appellee,
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 D.C. Docket No. 3:09-cv-10727-WGY-HTS.

          Before TJOFLAT and HULL, Circuit Judges, and BARTLE, [*] District Judge.

          OFLAT, Circuit Judge

         This appeal, brought by three tobacco companies ("Appellants"), challenges on multiple grounds the judgment entered against them and in favor of Pauline Burkhart for compensatory and punitive damages. The judgment was awarded after a bifurcated, ten-day trial in which the jury found in Burkhart's favor on her claims of negligence, strict liability, fraudulent concealment, and civil conspiracy. This case, which is one of thousands of Engle progeny lawsuits initiated by smokers in the state of Florida against this country's major tobacco companies, has remained pending on appeal for several years while awaiting resolution of other appeals in this Court and the Florida Supreme Court. With the benefit of those decisions, and after carefully reviewing the record and considering the parties' written and oral arguments, we affirm the District Court's judgment in full.


         A. The Engle Litigation

         This case has its genesis in 1994, when six plaintiffs suffering from lung diseases sued this country's major cigarette manufacturers for strict liability, negligence, breach of express warranty, breach of implied warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress. Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278, 1281 (11th Cir. 2013). The plaintiffs brought their suit as a class action on behalf of all Florida citizens and residents "who have suffered, presently suffer or have died from diseases and medical conditions caused by the addiction to cigarettes that contain nicotine, " as well as their survivors. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40 (Fla. Dist. Ct. App. 1996). The Florida trial court certified the class and divided the case up into three phases. In the first phase, after a year-long trial, a jury decided "common issues relating exclusively to defendants' conduct and the general health effects of smoking, " such as causation and the class's entitlement to punitive damages. Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 428 (Fla. 2013) (quoting Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1277 (Fla. 2006) (per curiam)). After deliberations, the jury answered nine questions on the jury form, which was agreed upon by the class and the tobacco companies. The first two answers resolved questions of causation: "1 (that smoking cigarettes causes [20 specific diseases])" and "2 (that nicotine in cigarettes is addictive)." Engle, 945 So.2d at 1277. In addition to these findings, the jury found the following with respect to the tobacco companies' conduct:

3 (that the defendants placed cigarettes on the market that were defective and unreasonably dangerous), 4(a) (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(a) (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 representations of fact made by said defendants), and 8 (that all of the defendants were negligent).

Id. The jury further "made nonspecific findings in favor of the plaintiffs on Questions 4[b] (fraud and misrepresentation) and 9 (intentional infliction of emotional distress)."

         Id. at 1255. Finally, the jury found that the tobacco companies' conduct entitled the class to punitive damages. Id. at 1262.

         In the second phase, the jury concluded that the tobacco companies were liable to three of the class's representatives and accordingly awarded compensatory damages in the amount of $12.7 million. Walker, 734 F.3d at 1282. The jury also set a $145 billion punitive damages award on behalf of the entire class. Id.

         The third phase would have asked new juries to "decide specific causation and damages for the remaining class members in Phase III." Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1175 (11th Cir. 2017) (en banc), cert. denied, 138 S.Ct. 636 (2018). However, before Phase III began, the tobacco companies appealed the judgments in both of the first two phases of the trial. Id. at 1178. The Florida Supreme Court affirmed in part and reversed in part. Engle, 945 So.2d at 1254. The Court held that class certification was impossible with respect to the upcoming third phase of the trial, which involved questions of liability to individual plaintiffs, "because individualized issues such as legal causation, comparative fault, and damages predominate." Id. at 1268. However, the Court "retained" the jury's Phase I findings as to the tobacco companies' conduct "other than those on the fraud and intentional infliction of emotional distress claims, which involved highly individualized determinations, and the finding on entitlement to punitive damages questions, which was premature." Graham, 857 F.3d at 1178 (quotations and alterations omitted) (quoting Engle, 945 So.2d at 1269). Hence the Court explained that going forward, individual plaintiffs could pursue "individual damages actions" on their own. Engle, 945 So.2d at 1269. When they do so, the Court explained, those "retained findings" from the first two phases of the trial "will have res judicata effect in those trials." Id. The Court vacated accordingly the class-wide punitive damages finding the jury awarded in Phase II. Id. at 1276.

         Thousands of individual lawsuits followed. These suits-known commonly as "Engle progeny" suits-presented the Florida Supreme Court with a new question arising from its decision to give preclusive effect to the Engle jury's Phase I findings. This question concerned the "extent to which the smokers could rely on the approved findings from Phase I to establish certain elements of their claims." Graham, 857 F.3d at 1178. The Court resolved this question in Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla. 2013). It held that the Phase I findings were "common to all class members and will not change from case to case"; hence, those findings were sufficient to "conclusively establish" the conduct elements of the plaintiffs' individual claims, to the extent those findings matched the elements required to establish the plaintiffs' tort claims. Id. at 428-30. The Court also held that giving preclusive effect to the Phase I findings did not violate the tobacco companies' due process rights under the federal Constitution. Id. at 430.

         In Walker v. R.J. Reynolds Tobacco Co., we too held that giving preclusive effect to the jury's findings in Phase I of Engle did not run afoul of the Due Process Clause. 734 F.3d at 1290. We explained that the Constitution requires us to give full faith and credit to the Florida Supreme Court's decisions in Engle, as interpreted by Douglas, unless doing so would violate the tobacco companies' due process rights. Id. at 1287. We concluded that giving preclusive effect to the Engle jury's Phase I findings does not so deprive the tobacco companies of their right to contest their liability that it violates their constitutional right to due process. Id. at 1290. We reaffirmed this conclusion en banc in Graham v. R.J. Reynolds Tobacco Co. with respect to the negligence and strict-liability claims brought by the plaintiff in that case.[1] 857 F.3d at 1174.

         B. This Case

         In the instant case, an Engle progeny suit, Pauline Burkhart sued R.J. Reynolds, Philip Morris, and Lorillard for negligence, strict products liability, fraudulent concealment, and conspiracy to fraudulently conceal. Burkhart, who began smoking in the 1950s and continued to do so until the 1990s, alleged that smoking caused her chronic obstructive pulmonary disease (COPD). She sought compensatory and punitive damages.

         After extensive discovery and pretrial motions, the trial began on May 5, 2014. The District Court divided the trial into two phases. In the first phase, the Court asked the jury to consider whether Appellants were liable to Burkhart for compensatory and punitive damages, to determine whether Burkhart was contributorily negligent, and, if so, to apportion fault among Burkhart and the three tobacco companies. The Court also instructed the jury to establish a compensatory damages award if it did find Appellants were liable to Burkhart, and that the Court would thereafter apportion and reduce the award based on the jury's comparative-fault finding. The Court instructed the jury to give preclusive effect to the Engle jury's findings as to Appellants' conduct for purposes of establishing the conduct elements of Burkhart's negligence, strict-liability, and intentional-tort claims. In the second phase, the existence of which depended upon the jury's finding of liability for punitive damages in the first phase, the Court instructed the jury to determine the proper punitive damages award.

         Two days into the trial's first phase, Burkhart suffered a medical incident in the presence of the jury and was taken to the hospital. See infra p. 15-17. Burkhart recovered, and the trial continued after the District Court questioned the jurors individually about the incident's effects on their impartiality and thereafter denied Appellants' motion for a mistrial.

         The first phase of the trial lasted eight days. The District Court then sent the jury to deliberate on the question of Appellants' liability to Burkhart. The jury instructions stated that the jury must treat as established that Appellants were negligent in bringing their products to the market, that the products were unreasonably dangerous, that Appellants concealed information about the risks of smoking that was not otherwise available to the public, and that they conspired amongst themselves to do so. The instructions did, however, explain to the jury that it must determine whether (1) Burkhart was a member of the Engle class; (2) whether she filed her claim within the applicable limitations period; (3) for purposes of her negligence and strict-liability claims, whether her smoking addiction caused her COPD; (4) for purposes of her fraudulent concealment and conspiracy claims, whether she relied on Appellants' concealment in continuing to smoke; and (5) for purposes of establishing Appellants' liability for punitive damages, whether Burkhart proved by clear and convincing evidence that Appellants' concealed information about the risks of smoking with knowledge of the wrongfulness of their conduct and the risks such concealment presented to the public.

         The jury returned its verdict in favor of Burkhart on all of her claims. It found Appellants liable to Burkhart for compensatory damages and that Appellants' intentional conduct met the statutory standard to justify an award of punitive damages. The jury assessed Burkhart's compensatory damages at $5 million, and found that R.J. Reynolds' conduct caused twenty-five percent of the damages, Philip Morris' fifteen percent, and Lorillard's ten percent.

         Next, the trial proceeded to its second phase, which was conducted solely for the purpose of fixing a punitive damages amount. After less than two hours of deliberating, the jury sent the Court a note saying that it could not "come to a unanimous decision." Appellants asked the Court to deliver an Allen charge to the jury, but the Court refused to do so at that point and instead delivered a written response instructing the jurors to continue deliberating and encouraging them to "re- examine" their positions if they were to "become convinced" their positions were wrong. About forty minutes later, the jury sent a second note saying that it still could not reach a unanimous decision "without giving up honest beliefs." The Court then summoned the jury, delivered this Circuit's pattern Allen charge, [2] and sent the jury back to deliberations. Fifty minutes later, the jury returned a unanimous verdict awarding punitive damages as follows: $1, 250, 000 against R.J. Reynolds, $750, 000 against Philip Morris, and $500, 000 against Lorillard.

         After trial concluded and the District Court issued its judgment, Appellants moved for judgment as a matter of law and a new trial. The District Court denied those motions. Appellants timely appealed.[3]


         Appellants challenge the trial outcome on numerous grounds. Because many of those grounds rely on conduct by the District Court and the litigants that occurred at trial, we begin each subsection below with a recitation of the pertinent facts giving rise to the claim at issue.

         A. Statute of Limitations Instructional Error

         Appellants first argue that the District Court's jury instruction on the applicable statute of limitations misstated Florida law and warrants a retrial. COPD, like other smoking-related lung diseases, is a type of "creeping disease, " a disease that worsens progressively over a relatively long period of time. Florida's statute of limitations is clear with regard to products-liability actions involving creeping diseases: it says the limitations period begins "only when the accumulated effects of the deleterious substance manifest themselves to the claimant, in a way which supplies some evidence of causal relationship to the manufactured product." Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 936 (Fla. 2000) (internal quotation marks and alterations omitted). It is the jury's responsibility to sort out when this first took place. "[T]he question of when the statute of limitations begins to run" in a personal-injury case involving a creeping disease "is generally treated as a fact question for a jury to resolve." Id. at 937 (internal quotation marks and alterations omitted).

         In this case, then, the operative issue under Florida law was when the accumulated effects of Burkhart's COPD reached the point where she knew or should have known that there was a causal relationship between her smoking and her COPD. Indeed, the parties agreed on language to this effect before the Court changed it. Both parties' proposed instructions contained language stating that Burkhart's suit was barred if she "knew, or by the exercise of reasonable care should have known, before May 5, 1990, that she had COPD and that there was a reasonable possibility that her COPD was caused by cigarette smoking." (Emphasis added).

          However, the District Court, believing this agreed-upon instruction misstated the law, changed the instruction and instead told the jury:

The verdict form will ask you whether the Plaintiff knew, or in the exercise of reasonable care should have known, before May 5, 1990, that she was addicted to cigarettes, that she had COPD, and that her addiction would be causative of her COPD.

         (Emphasis added). Appellants argue that this instruction was unfounded under Florida law and prejudicial to their case. They say the instruction misguided the jury: "Questions of whether Mrs. Burkhart was addicted, whether the addiction caused her COPD, and when she knew that it might have done so have no bearing on the proper limitations inquiry." This, Appellants say, prejudiced them. The statute of limitations is an affirmative defense in Florida; hence, the burden fell on Appellants to establish that the limitations period had lapsed when Burkhart brought suit. In their view, "requiring [Appellants] to prove when a lay plaintiff knew she suffered an injury caused by addiction was a considerable burden-and far more onerous than simply requiring them to prove that she knew she suffered a disease possibly caused by smoking." They argue that they "put forth extensive evidence that Mrs. Burkhart's COPD had manifested well before 1990 and that she attributed multiple COPD symptoms to her smoking." Thus, the District Court's instructional error in effect negated this evidence.

         We conclude that the District Court's instruction was erroneous yet harmless. The evidence in the trial record established indisputably that Burkhart was diagnosed with COPD after May 5, 1990. Although Appellants say they "put forth extensive evidence that Mrs. Burkhart's COPD had manifested well before 1990 and that she attributed multiple COPD symptoms to her smoking, " the evidence they cite establishes only that she experienced general smoking-related symptoms, not symptoms that would put her on notice that she suffered from COPD. Appellants cite testimony that Burkhart "had a really good smoker's cough" in the 1970s, that by the 1980s "her cough was causing chest tightness and taking her breath away" and she "began to experience shortness of breath when doing yard work, walking up stairs, and visiting higher altitudes, " and that she "repeatedly suffered from bronchitis" during those periods.

         Under Florida law, standing alone, these symptoms could not have given Burkhart notice that she had COPD, let alone that her claim against the tobacco companies was legally actionable. As the Florida Third District Court of Appeal observed in a similar tobacco case while ruling on the admissibility of expert testimony about the timeliness of a doctor's diagnosis of COPD in the plaintiff,

[M]any symptoms or effects that might later develop to become a compensable injury attributable to smoking-shortness of breath, or persistent coughing, for example-do not in isolation provide a sufficient legal basis for initiating a lawsuit against a tobacco company. Rather, the "manifestations" that are pertinent are symptoms or effects that actually disclose that the prospective claimant is suffering from a disease or medical condition caused by tobacco use, and which are thus sufficient to assert a cause of action against the responsible manufacturer(s). In the case at hand, Ms. Frazier could not have filed a non-frivolous lawsuit against the appellees in 1986 on a theory that her symptoms and pneumonia were compensable results of her addiction to tobacco, nor could she have filed such a lawsuit in 1987 for "pneumonia and/or bronchitis." It was not until February 1991 that a set of tests and a referral adduced competent evidence that COPD/emphysema was a likely suspect.

Frazier v. Philip Morris USA Inc., 89 So.3d 937, 945 (Fla. Dist. Ct. App. 2012), approved sub nom. Philip Morris USA, Inc. v. Russo, 175 So.3d 681 (Fla. 2015). The Court further explained,

The issue was not whether [the plaintiff] "had" the creeping, stealthy disease of COPD/emphysema before May 5, 1990; the issue was whether she knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit against the appellees on the basis of those physical, observable, patent symptoms and effects ("manifestations") before that date.

Id. at 946.

         This analysis is true in the instant case as well. That Burkhart had a smoker's cough, shortness of breath, and intermittent bronchitis established only that she suffered from respiratory symptoms that are ubiquitous among smokers, the majority of which never develop COPD. Indeed, Appellants' own expert witness testified that smoker's cough is frequent in smokers, and that most smokers who experience it do not have or will not get COPD.

         In sum, it is undisputed that Burkhart was diagnosed with COPD well after May 5, 1990. The evidence in the record would not allow a reasonable factfinder to find that she knew or should have known that she had a smoking-related disease prior to her COPD diagnosis. Thus, the District Court's instructional error was harmless, because it could have prejudiced Appellants only if the evidence presented would have supported the finding that Burkhart knew or should have known that she had a smoking-related lung disease prior to May 5, 1990.

         B. Burkhart's In-Court Medical Emergency

         Next, Appellants argue that Burkhart's medical event in the courtroom infected the jury with prejudice. They contend the District Court should have accordingly declared a mistrial.

         Three days into the trial, about twenty minutes after the day's proceedings began, Burkhart suffered a medical incident. The trial record indicates she stated, "I think I'm having a stroke." Exactly what happened immediately afterward is unclear from the record and subject to differing accounts: Appellants allege Burkhart "continued crying out in pain for 20 or 30 seconds or perhaps a minute" in the presence of the jury, while Burkhart alleges the District Court "immediately excused the jurors."

         In any event, after the District Court dismissed the jury, Burkhart's counsel explained to the Court that the incident might have been related to a fall Burkhart suffered earlier that morning, or that it might have stemmed from Burkhart's reaction to anxiety and stress. Appellants then moved for a mistrial on the basis that the incident would have a "massive emotional effect" on the jury that would unduly prejudice Appellants. After hearing arguments from both sides, the District Court brought the jurors in and asked them one-by-one if they would be able to put the incident behind them in deciding the case and/or assessing damages. The Court asked each of the eight jurors the same two questions:

[First], "do you believe that observing that incident will cause you to have sympathy with regard to Mrs. Burkhart's case to the point where it influences your decision on the facts and the law? And, second, whether or not in spite of that sympathy, which is natural-nobody should feel embarrassed by having such sympathy-whether or not you can make your decision strictly on the evidence presented to you, of which this incident was not a part?"

         All of the jurors assured the Court that they would not be influenced by the incident, and that they could render their decision strictly on the basis of the evidence. None was equivocal. One juror stated, "I do feel sympathetic, but not that it would impede my judgment in any way." Another stated, "I can't say I feel any more sympathetic today than yesterday. I understand that she's a sick person or she wouldn't be in the lawsuit." Still another said, "I'm sympathetic with her condition and the incident that happened, but it won't affect my decision in any way." When asked whether he could "honor [his] oath, " another juror answered, "Unequivocally." In addition, the District Court remarked that it "fully agree[d]" with the observation of Burkhart's counsel that the jurors "both with their body language and their tone of voice reflected their willingness to abide by the oath and to ignore the incident."

         Despite these assurances, Appellants maintain that the jury was irreparably prejudiced by the event. They contend that "Mrs. Burkhart's in-court medical emergency created just the sort of incurable prejudice that requires a new trial, "particularly because "it pertained directly to her claim for non-economic damages" like pain and suffering and mental anguish.

         We review a District Court's ruling on a motion to grant a mistrial based on unexpected events at trial for abuse of discretion. Messer v. Kemp, 760 F.2d 1080, 1087 (11th Cir. 1985). Such situations warrant considerable deference to the District Court's judgment: "Because the trial judge is in the best position to evaluate the prejudicial effect of a spectator's outburst, the decision on whether to grant a mistrial lies within his sound discretion." Id. Oftentimes, the District Court may cure the error by instructing the jury to disregard the potentially prejudicial incident. See Griffin v. City of Opa-Locka, 261 F.3d 1295, 1302-03 (11th Cir. 2001) (holding the district court did not abuse its discretion in denying a mistrial after unexpected "emotional outbursts from [the plaintiff] and another witness, " when "[t]he court questioned each of the prospective jurors about what they had witnessed and what effect it might have on their partiality" and "[e]ach juror ultimately selected to serve on the jury stated that he or she could ignore the incident and decide the case based on the evidence").

         Here, we conclude that the District Court did not abuse its discretion in denying Appellants' motion for a mistrial. Shortly after Burkhart's medical incident, the District Court carefully instructed the jury to disregard the episode and consider only the evidence presented in the case when reaching its verdict. The Court also questioned the jurors individually as to whether they would be able to keep any sympathy for Burkhart engendered by the incident from influencing their deliberations. The jurors responded unequivocally that they would be able to do so. We have no reason to doubt them under the circumstances of this case. See Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985) (per curiam) ("Jurors are presumed to follow the law as they are instructed."). We acknowledge that some events could be so incurably prejudicial that no instruction by the District Court could possibly remedy them. But based upon the jurors' unanimous and unequivocal responses and our deference to the District Court's sound discretion as a first-hand witness to the events in question, we are not persuaded that Burkhart's brief, isolated medical incident was such an event. We thus find no abuse of discretion.

         C. Punitive Damages Issues

         Appellants challenge two aspects of the District Court's handling of the punitive damages phase of the trial. First, they argue the District Court "improperly prevented Defendants from opposing Mrs. Burkhart's request for punitive damages- even going so far as striking portions of the summation of Defendants' closing argument." Second, they contend the District Court coerced the deadlocked jury into reaching a unanimous verdict as to the punitive damages amount. We address each argument in turn.

         1. The District Court's Conduct During Appellants' Closing Arguments

         During Appellants' closing remarks, Burkhart's counsel twice objected to portions of their arguments concerned with the extent of Appellants' wrongdoing in regards to the concealment and conspiracy torts. The District Court sustained Burkhart's objections and instructed the jury each time that Appellants ...

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