PHILIP MORRIS USA, INC., R.J. REYNOLDS TOBACCO COMPANY, and LIGGETT GROUP LLC v. JAMES SANTORO, as Successor as Personal Representative of the Estate of Grace Santoro

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

PHILIP MORRIS USA INC., R.J. REYNOLDS TOBACCO COMPANY,
and LIGGETT GROUP LLC,
Appellants,

v.

JAMES SANTORO, as successor as Personal Representative of the
ESTATE OF GRACE SANTORO,
Appellee.

No. 4D18-1730

[May 6, 2020]

Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case
Nos. 08-80000 (19), 2008-CV-025807 (19).

David F. Northrip, Maria Salcedo, and Laura K. Whitmore of Shook,
Hardy & Bacon L.L.P., Kansas City, MO, and Geoffrey J. Michael of Arnold
& Porter Kaye Scholer LLP, Washington, DC, for appellant Philip Morris
USA Inc.

William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta,
GA, for appellant R.J. Reynolds Tobacco Company.

Kelly Anne Luther of Kasowitz Benson Torres LLP, Miami, for appellant
Liggett Group LLC.

Justin Parafinczuk and Austin Carr of Koch Parafinczuk Wolf Susen,
Fort Lauderdale, and Bard D. Rockenbach and Jeffrey V. Mansell of
Burlington & Rockenbach, P.A., West Palm Beach, for appellee.

WARNER, J.

Philip Morris USA Inc., R.J. Reynolds Tobacco Company, and Liggett
Group LLC (Tobacco Defendants) appeal a final judgment for damages
entered in favor of James Santoro, as Successor Personal Representative
of the Estate of Mrs. Grace Santoro (the Estate). Tobacco Defendants
contend that the court erred in denying their motion for directed verdict
on the ground that the decedent was a member of the Engle class, 1 thus
precluding this cause of action. The Estate cross-appeals the final
judgment, contending that the court erred in setting aside the jury verdict
on its strict liability and negligence claims, as well as the award of punitive
damages, based upon the Estate’s failure to prove causation as to each
individual defendant. We affirm the denial of the directed verdict as to
class membership, but we reverse the order granting defendants’ motion
for directed verdict, concluding that sufficient evidence was presented for
the jury to find as it did on both issues. 2

The Estate filed this Engle progeny suit in 2007 against the Tobacco
Defendants for Grace Santoro’s wrongful death in 1998 from lung cancer.
Grace had been a lifetime smoker. The Estate alleged claims for strict
liability, negligence, fraudulent concealment, and conspiracy to commit
fraud by concealment. Tobacco Defendants contested Grace’s
membership in the Engle class, as well as their individual causation of her
death.

At trial, to prove Engle class membership, the Estate presented
testimony from an expert pulmonologist and Mr. Santoro, Grace’s
husband. The expert pulmonologist, Dr. Allan Feingold, testified that Mrs.
Santoro was first diagnosed with cancer on July 7, 1997. A CT scan on
that date revealed a 7.1 centimeter mass in the upper right lobe of Mrs.
Santoro’s lung. A biopsy showed the tumor was advanced, stage III, non-
small cell lung cancer. Dr. Feingold testified that because he knew the
cancer cell type and the rate at which that cell type grows, he could
determine how long Mrs. Santoro’s tumor had been growing in her chest.
Using his expertise, he calculated that by the end of September 1996, the
diameter of the tumor would have been at least 4.41 centimeters. In May
1996, it would have been 3.5 centimeters, the size of a walnut, and would
have been easily detectible on an X-ray, had one been taken.

Dr. Feingold testified that such a tumor could cause hemoptysis,
coughing up of blood from the lung. Mrs. Santoro’s husband testified that
she had coughed up blood on a trip they took to Las Vegas in the summer

1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2 In one issue on appeal, Tobacco Defendants argue that the Estate’s claims are
preempted or that use of the Engle findings violates their due process rights.
They acknowledge, however, that their claims have already been rejected by the
Florida Supreme Court. See R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d
590, 605 (Fla. 2017); Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 430-36
(Fla. 2013). We do not address this further, because these issues have already
been settled.

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of 1996. While the Tobacco Defendants attempted to impeach Mr. Santoro
with his deposition testimony, he tied the trip to his purchase of a car for
them with the couple’s winnings from that trip, and records showed that
he had indeed purchased a vehicle that summer. Mrs. Santoro’s medical
records indicated that she reported incidents of hemoptysis in the spring
and summer of 1997, after which she was diagnosed with lung cancer.

At the close of the Estate’s case, Tobacco Defendants moved for a
directed verdict on Engle class membership, arguing that the Estate had
failed to prove that Mrs. Santoro’s lung cancer had manifested itself prior
to the Engle class cutoff date of November 21, 1996. The court deferred
ruling but ultimately denied the motion. Tobacco Defendants also moved
for a directed verdict claiming that the Estate had failed to prove the use
of each individual Tobacco Defendant’s product was a legal cause of the
lung cancer and death of Mrs. Santoro, the facts of which we will address
later in this opinion. The trial court reserved ruling and expressed concern
that there was no testimony as to each individual defendant’s liability.

The case proceeded to the jury, and the jury found that Mrs. Santoro’s
lung cancer manifested itself before the Engle class cutoff date, and thus
she was a member of the Engle class. The jury determined that Mrs.
Santoro’s smoking of each Tobacco Defendant’s cigarettes was a legal
cause of her lung cancer and death. The jury found for the Estate on its
strict liability, negligence, fraud, and conspiracy counts and apportioned
liability as follows:

Grace Santoro: 36%
Philip Morris USA, Inc.: 28%
R.J. Reynolds Tobacco Company: 26%
Liggett Group LLC: 10%

It awarded compensatory damages in the amount of $1,605,000, and also
found that the Tobacco Defendants should be liable for punitive damages.
The jury returned a Phase II verdict awarding the Estate $100,000 in
punitive damages against Philip Morris, $90,000 from R.J. Reynolds, and
$15,000 from Liggett. The trial court initially entered judgment in the
Estate’s favor for both compensatory and punitive damages.

Tobacco Defendants moved to set aside the verdict in accordance with
their motion for directed verdict which claimed a lack of proof of causation
from each defendant’s brands of cigarettes, as well as failure to prove Engle
class membership. The court granted the motion as to the strict liability,
negligence, and fraud claims but denied it as to the conspiracy count,
based upon Rey v. Philip Morris, Inc., 75 So. 3d 378 (Fla. 3d DCA 2011),

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which concluded that brand usage was irrelevant in a conspiracy claim.
The trial court also denied Tobacco Defendants’ motion to set aside the
Phase I and Phase II verdicts as to class membership.

The trial court originally reduced the verdict to account for Mrs.
Santoro’s comparative negligence. The Estate moved to amend the final
judgment pursuant to Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d
294 (Fla. 2017) to award the full amount of compensatory and punitive
damages. The trial court granted the motion as to compensatory damages,
but denied it with respect to punitive damages, since the Estate sought
punitive damages only on the negligence and strict liability claims upon
which the court had granted the directed verdict. The court then amended
the final judgment to award the full amount of compensatory damages.
From this judgment both sides appeal.

Denial of Directed Verdict on Engle Class Membership

Tobacco Defendants first contend that the court erred in denying their
motion for directed verdict on Mrs. Santoro’s Engle class membership.
They argue that the expert’s testimony of the retrograde analysis of the
size of the tumor at the time of the Engle class membership cutoff date
does not constitute the “manifestation” of her disease within the meaning
of the case law. The Estate counters that the retrograde analysis of the
tumor size in the spring of 1996, which could cause symptoms, together
with the testimony of Mr. Santoro that his wife experienced hemoptysis
prior to the cutoff date, was sufficient to prove class membership. We
agree with the Estate.

Review of a trial court’s denial of a motion for directed verdict is de
novo, “while considering ‘the evidence and all inferences of fact in the light
most favorable to the nonmoving party.’” Broward Exec. Builders, Inc. v.
Zota, 192 So. 3d 534, 536 (Fla. 4th DCA 2016) (citation omitted). “A
directed verdict ‘is not appropriate in cases where there is conflicting
evidence as to the causation or the likelihood of causation.’” Friedrich v.
Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013) (quoting Cox v.
St. Josephs Hosp., 71 So. 3d 795, 801 (Fla. 2011)). “A directed verdict can
be upheld only if there is no evidence or inference from the evidence
which will support the non-moving party’s position. Moreover, a directed
verdict in a negligence action should only be entered if the plaintiff could
not recover under any reasonable view of the evidence.” Whitney v.
R.J. Reynolds Tobacco Co., 157 So. 3d 309, 312 (Fla. 1st DCA 2014)
(citation omitted) (emphasis included).

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 To rely on the findings of Engle v. Liggett Group, Inc., 945 So. 2d 1246,
1274 (Fla. 2006), which established general causation that cigarette
smoking causes cancer, the Estate was required to prove that Grace
Santoro was a class member under Engle, whose members are described
as those “who have suffered, presently suffer or who have died from
diseases and medical conditions caused by their addiction to cigarettes
that contain nicotine.” See R.J. Reynolds Tobacco Co. v. Ciccone, 190 So
3d 1028, 1030 (Fla. 2016) (quoting R.J. Reynolds Tobacco Co. v. Engle, 672
So. 2d 39, 40 (Fla. 3d DCA 1996)). The court established a cutoff date for
Engle class membership of November 21, 1996. “The critical event is not
when an illness was actually diagnosed by a physician, but when the
disease or condition first manifested itself.” Engle, 945 So. 2d at 1276.
Thus, the disease must manifest itself in the person before the cutoff date.

In Ciccone, the supreme court addressed the certified question of
“defining ‘manifestation’ of the plaintiff’s tobacco-related disease or
medical condition for purposes of establishing membership in the Engle
class.” 190 So. 3d at 1035. The Ciccone court held that “‘manifestation’
for purposes of establishing membership in the Engle class is defined as
the point at which the plaintiff began suffering from or experiencing
symptoms of a tobacco-related disease or medical condition.” Id. at 1041.

We conclude that the evidence was sufficient to submit to a jury for
determination of whether Mrs. Santoro suffered symptoms from lung
cancer prior to the cutoff date of Engle class membership. See, e.g.,
Castillo v. E.I. Dupont De Nemours & Co., Inc., 854 So. 2d 1264, 1279 (Fla.
2003). Her husband testified that she had an incident of coughing up
blood, or hemoptysis, in the summer of 1996. The expert testified that her
lung cancer tumor was of sufficient size then to cause hemoptysis, which
is a symptom of lung cancer. He also opined that her lung cancer was
caused by smoking. “The question of class membership is a fact issue
viewed with the benefit of hindsight . . . where expert testimony may
establish the link between a plaintiff’s concrete symptoms and tobacco.”
Ciccone, 190 So. 3d at 1039. Dr. Feingold’s testimony provided a link
between the husband’s testimony of the 1996 incident of hemoptysis, that
it was a symptom of cancer, and her death from lung cancer caused by
her cigarette smoking.

Although Tobacco Defendants point to their impeachment of the
husband’s testimony regarding the date he observed the hemoptysis, the
jury was free to weigh the credibility of a witness and accept or reject
testimony. See Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 2011). The
weight to be given evidence is for the jury to decide. Whitney v. R.J.
Reynolds Tobacco Co., 157 So. 3d 309, 314 (Fla. 1st DCA 2014). A

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reviewing court may not reweigh the evidence or substitute its judgment
concerning the credibility of a witness for that is the province of the jury.
Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013). We
therefore find no error in denying Tobacco Defendants’ motion for directed
verdict on Engle class membership.

Setting Aside Jury Verdict Based upon Failure to Prove Legal Cause
as to Individual Defendants

At issue on the cross-appeal is the trial court’s decision to set aside the
jury’s verdict in favor of the Estate on its claims for negligence and strict
liability in accordance with Tobacco’s motion for directed verdict. The
court reasoned that without expert testimony to support individual legal
causation, the verdict could not stand.

The Estate agrees that the expert, Dr. Feingold, did not give specific
opinion testimony on causation as to each Tobacco Defendant. It argues,
however, that Dr. Feingold’s testimony, together with Mr. Santoro’s
testimony, regarding the brands that Mrs. Santoro smoked and the periods
of time that she smoked each Defendant’s cigarettes, was sufficient proof
of causation for their negligence and strict liability claims. We agree.

In Engle, the supreme court established certain findings which had a
res judicata effect on all Engle progeny cases. Those included:

i) “that smoking cigarettes causes” certain named diseases
including COPD and lung cancer; (ii) “that nicotine in
cigarettes is addictive;” (iii) “that the [Engle] defendants placed
cigarettes on the market that were defective and unreasonably
dangerous;” (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;” (vi) “that all of the
[Engle] defendants sold or supplied cigarettes that were
defective;” (vii) “that all of the [Engle] 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 (viii) “that all of the [Engle] defendants were negligent.”

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 ...

. . . Because these findings go to the defendants’ underlying
conduct, which is common to all class members and will not
change from case to case, we held that these approved “Phase
I common core findings . . . will have res judicata effect” in
class members’ “individual damages actions.”

Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-28 (Fla. 2013)
(footnote omitted) (quoting Engle, 945 So. 2d at 1276-77, 1269). These
findings establish general causation, and individual causation must be
established in subsequent lawsuits. The Douglas court explained:

In other words, the Phase I common liability jury determined
general causation (the connection between the Engle
defendants’ addictive cigarettes and the diseases in question),
which leaves specific or individual causation (the connection
between the Engle defendants’ addictive cigarettes and the
injury that an individual plaintiff actually sustained) to be
determined on an individual basis. The Engle defendants
may defend against the establishment of individual causation,
for example, by proving that the disease at issue was the
result of a genetic predisposition, exposure to an occupational
hazard, or something unrelated to the plaintiff's addiction to
smoking the Engle defendants’ cigarette.

Id. at 428. In Douglas, the defendants claimed that the Engle findings were
not sufficiently specific “to establish a causal link between their conduct
and damages to individual plaintiffs who prove injuries caused by
addiction to smoking the Engle defendants’ cigarettes.” Id. The court
rejected this proposition and concluded that the Engle findings were
sufficient to prove individual causation. “When an Engle class member
makes this showing [of legal causation due to addiction to cigarettes],
injury as a result of the Engle defendants’ conduct is assumed based on
the Phase I common liability findings.” Id. at 429.

In other words, to prevail on either strict liability or negligence
Engle claims, individual plaintiffs must establish (i)
membership in the Engle class; (ii) individual causation, i.e.,
that addiction to smoking the Engle defendants’ cigarettes
containing nicotine was a legal cause of the injuries alleged;
and (iii) damages. See Engle, 945 So. 2d at 1254 (recognizing
that Engle plaintiffs are required to prove “individual
causation” in their damages actions); see also Martin, 53 So.

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 3d at 1069 (holding that the plaintiff proved legal causation
for her negligence and strict liability claims by producing
“sufficient evidence for a jury to find that [the deceased’s]
addiction to [the Engle defendant’s] cigarettes[, stipulated to
contain nicotine,] was the legal cause of his death”).

Id. at 430 (emphasis added).

The Douglas court cited with approval to R.J. Reynolds Tobacco Co. v.
Martin, 53 So. 3d 1060, 1069 (Fla. 1st DCA 2010), review denied, 67 So.
3d 1050 (Fla. 2011), cert. denied, 566 U.S. 905 (2012). Martin is
instructive on the issue of the proof necessary for individual causation.
There, the decedent smoked R.J. Reynolds cigarettes his entire life and
died of lung cancer. His widow brought suit for wrongful death. At trial,
the parties stipulated that the cigarettes the decedent smoked contained
nicotine, nicotine is addictive, and smoking causes lung cancer. The jury
found that the cigarettes were a legal cause of his death and awarded
substantial damages. The main issue on appeal was whether the plaintiff
could rely on the Engle findings to prove individual causation. The court
held that she could and determined that there was sufficient evidence to
submit to the jury on the issue:

At trial Mrs. Martin produced evidence showing that: Mr.
Martin started smoking at age 14 and by age 23 was smoking
two packs of non-filtered Lucky Strike cigarettes every day;
. . . Mr. Martin was diagnosed by a physician as being
addicted to nicotine; his treating pulmonologist determined
his decades of smoking caused him to contract lung cancer
which in turn caused his death. The record thus
demonstrates Mrs. Martin was required to prove legal
causation, and she produced sufficient evidence for a jury to
find that Mr. Martin’s addiction to RJR’s cigarettes was the
legal cause of his death.

Id. at 1069. What we glean from Douglas and Martin is that individual
causation can be proved by (1) the Engle findings that smoking cigarettes
causes cancer and related diseases, and nicotine in cigarettes is addictive;
(2) evidence that the decedent smoked the defendants’ cigarettes in
sufficient quantities to become addicted; (3) that decedent was addicted to
smoking cigarettes; and (4) smoking cigarettes caused her lung cancer and
death.

Tobacco Defendants argue that expert evidence was necessary to prove
that each of their products was a substantial factor in causing Mrs.

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Santoro’s death from lung cancer, with which the trial court agreed. We
conclude, however, that the Estate did prove this with a combination of
expert testimony, lay testimony, and the Engle findings from which the
jury could draw logical inferences.

Through lay testimony, the jury learned that Mrs. Santoro was smoking
from the time she was seventeen years old. She smoked multiple brands
manufactured by Tobacco Defendants. She first smoked Chesterfields
(Liggett) for four or five years. She also smoked Lucky Strikes (RJR) for
four or five years; Marlboro (PM), for six or seven years; Philip Morris (PM)
for at least five years; and Camel (RJR), Virginia Slims (PM), Viceroy (RJR),
and Kool (RJR) for unspecified amounts of time. Mrs. Santoro’s medical
records showed that she smoked “one and a quarter to two packs per day,
which would be somewhat more than 20 cigarettes, maybe 25 cigarettes a
day to 40 cigarettes a day.” Dr. Feingold testified that consistent ingestion
of five milligrams of nicotine, which would be delivered by five cigarettes,
was a threshold for addiction. “Almost everybody that smokes four times
that threshold amount would be addicted,” and he opined that Mrs.
Santoro was addicted based upon standard tests used to determine
addiction. Mrs. Santoro’s nicotine intake, assuming that she smoked
forty-nine years, would be “self-administered doses of nicotine” of more
than “5 million doses.” If she smoked thirty-nine years, then it would be
more than “4 million doses” of nicotine. “And either way, it is my opinion
that the patient was addicted to nicotine while she smoked.” Dr. Feingold
also testified that she died of metastatic lung cancer, which was caused
by smoking cigarettes.

Based on the foregoing proof, the jury could find that Mrs. Santoro
smoked each Tobacco Defendant’s cigarettes in quantities and for a length
of time which would cause addiction to those cigarettes. Expert testimony
proved she was addicted to smoking. The Engle findings required the jury
to find that the nicotine in each of the Tobacco Defendants’ cigarettes
causes addiction, and smoking causes lung cancer. Expert testimony
showed that her addiction led to her lung cancer which led to her death.
In other words, the jury could determine that smoking each Tobacco
Defendant’s cigarettes “directly and in natural and continuous sequence,”
contributed substantially to producing her death. An expert was not
required to opine expressly as to each Tobacco Defendant that their
product was a substantial factor in causing the death of Mrs. Santoro. The
evidence presented did not require the jury to make any inferences other
than to tie the expert testimony to the lay testimony, as juries are
frequently asked to do in trials. See, e.g., Castillo v. E.I. Dupont De
Nemours & Co., Inc., 854 So. 2d 1264, 1279 (Fla. 2003). Thus, the court

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erred in overturning the jury verdict as to the strict liability and negligence
claims.

Conclusion

The court did not err in denying the Tobacco Defendants’ motion for
directed verdict as to Engle class membership, but it did err in granting
their motion for directed verdict as to the strict liability and negligence
claims. We thus reverse and remand for reinstatement of the jury verdict
on those claims, and for the entry of an amended final judgment which
will include the jury’s award of punitive damages which were based upon
the strict liability and negligence claims.

Affirmed in part; Reversed in part; and remanded for further proceedings.

FORST, J., and WALSH, LISA A., Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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