Stefanny Sommers, etc. v. Philip Morris USA Inc.

Third District Court of Appeal
State of Florida

Opinion filed March 6, 2024.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1202
Lower Tribunal No. 08-1464
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Stefanny Sommers,
Appellant,

vs.

Philip Morris USA, Inc.,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Alan Fine,
Judge.

Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.

Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael
(Washington, DC); Shook, Hardy & Bacon LLP, and Scott A. Chesin and
Michael Rayfield (New York, NY), for appellee.

Before LOGUE, C.J., and FERNANDEZ and LINDSEY, JJ.

LOGUE, C.J.

In this Engle progeny case, Stefanny Sommers, as Personal

Representative of the Estate of Bert Sommers, appeals the trial court’s final
judgment. We find the trial court properly concluded that the current version

of section 768.73(2), Florida Statutes, applied to Sommers’ wrongful death

action and barred her punitive damages claim. We also find the trial court

properly rejected Sommers’ alternative argument that she was entitled to

pursue punitive damages based on her survival claim because she

abandoned the survivor claim prior to trial. Accordingly, we affirm.

BACKGROUND

In 2008, Sommers brought an action for wrongful death against Philip

Morris USA Inc. as a member of the class of individuals defined by the

Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla.

2006). Sommers alleged claims for strict liability, negligence, fraudulent

concealment, and conspiracy to fraudulently conceal. In the alternative,

Sommers brought a survival action alleging Philip Morris caused the

decedent to develop coronary artery disease, which did not cause his death.

The complaint specifically stated that the survival claim would apply only “in

the event . . . Defendant[ ] contend[s] that Decedent[ ] died of some cause

unrelated to smoking cigarettes containing nicotine[.]”

In 2014, Sommers moved to amend her complaint to allege a claim for

punitive damages. The trial court entered an order granting the motion and

allowing Sommers to seek punitive damages on both her intentional and non-

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intentional tort claims. Shortly thereafter, on September 3, 2014, this Court

issued its opinion in R.J. Reynolds Tobacco Co. v. Williams, 183 So. 3d 408

(Fla. 3d DCA 2014), which adopted the First District’s decision in Soffer v.

R.J. Reynolds Tobacco Co., 106 So. 3d 456 (Fla. 1st DCA 2012) and held

that Engle plaintiffs were not entitled to seek punitive damages on their non-

intentional tort claims. Philip Morris moved for reconsideration of the trial

court’s order granting leave to amend as to the non-intentional torts based

on Williams. They also filed a motion for summary judgment on Sommers’

claim for punitive damages arguing that Williams precluded punitive

damages on the non-intentional tort claims and that Sommers had failed to

produce sufficient evidence to support punitive damages on the intentional

tort claims.

The trial court denied the motion for reconsideration without prejudice

as to the non-intentional tort claims. The trial court indicated it intended to

submit the issue to the jury through separate instructions and interrogatories

to preserve the issue for appeal and preclude the need for a lengthy retrial.

During pretrial motions, the trial court subsequently heard Philip Morris’

motion for summary judgment on the punitive damages claim. At the

conclusion of the hearing, the trial court granted the motion in its entirety.

With respect to the intentional tort claims, the trial court ruled that Sommers

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submitted an insufficient factual record on reliance, stating there was no

evidence in the record that the decedent relied on any statement made by

Philip Morris in any way that caused harm to the decedent. As to the non-

intentional tort claims, the trial court relied on Williams.

Sommers filed a lengthy motion for rehearing, which was heard the

Friday before trial was expected to begin. At the conclusion of the hearing,

the trial court indicated it would be deferring its ruling until Monday. Sommers

then made an emergency motion to continue the trial and stay the case

pending a forthcoming decision by the Florida Supreme Court in Soffer.

Philip Morris agreed to the relief sought and the trial court granted the motion.

In March 2016, the Florida Supreme Court issued its opinion in Soffer

v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016), which reversed

Williams and held that Engle plaintiffs may seek punitive damages on their

non-intentional tort claims. Sommers then reset her motion for rehearing,

which was subsequently denied by the trial court. Sommers filed a motion to

reinstate the punitive damages claim for the non-intentional torts based on

Soffer, and a motion for reconsideration with respect to the conspiracy to

fraudulently conceal claim. The trial court denied the motion for

reconsideration.

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 Trial commenced in March 2017. During jury selection, Sommers again

raised the issue of reinstating her punitive damages claims as to the non-

intentional torts. Philip Morris argued that if the trial court were inclined to

allow the claim for punitive damages to be reinstated, then the trial would

need to be continued to determine whether section 768.73(2), Florida

Statutes, barred the punitive damages claim. The trial court ultimately

declined to reinstate the punitive damages claims on the eve of trial. The

case then proceeded to trial with only compensatory damages at issue.

After jury selection, Sommers expressly elected to abandon her

alternative survival claim, explaining as follows:

PLAINTIFF’S COUNSEL: So the record is clear, after
consulting with Ms. Sommers, the PR for the Estate
of B[e]rt Sommers, we have decided, as a result of
the stipulation, if you will, that Philip Morris made at
the May 9th calendar call regarding a concession or
stipulation that Mr. Sommers – or one of his causes
of death was lung cancer caused by cigarette
smoking, substantially medically caused by cigarette
smoking.

Not being an issue any longer in the case, we are a
making the election as between a wrongful death
claim and survival to proceed with wrongful death.

On April 6, 2017, the jury returned a verdict finding that the decedent

was a member of the Engle class because his addiction to cigarettes caused

him to develop coronary artery disease before November 1996. The jury

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found Philip Morris liable for fraud and conspiracy, determining that the

decedent relied on false or misleading statements by Philip Morris that legally

caused his lung cancer and death. The jury then awarded Sommers $1

million in compensatory damages.

Sommers filed a motion for new trial on entitlement to punitive

damages. The trial court granted the motion in part, permitting Sommers to

seek punitive damages based only on her non-intentional tort claims. Despite

ordering a new trial on punitive damages, the trial court entered a final

judgment in Sommers’ favor for the compensatory damages award.

Philip Morris appealed the trial court’s final judgment and order

granting a new trial. Sommers cross-appealed the trial court’s denial of her

motion for new trial as it pertained to punitive damages on her intentional tort

claims. Philip Morris ultimately did not oppose the cross-appeal. This Court

subsequently affirmed as to the main appeal and partially reversed as to the

cross-appeal, remanding for a trial on punitive damages on both Sommers’

intentional and non-intentional tort claims. Philip Morris USA, Inc. v.

Sommers, 289 So. 3d 17 (Fla. 3d DCA 2019).

On remand, Philip Morris filed a motion to apply the current version of

section 768.73, Florida Statutes. It argued that Sommers’ punitive damages

claims were barred because the decedent died after the effective date of the

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statute (October 1, 1999) and Philip Morris had already paid hundreds of

millions in punitive damages for the same course of conduct. While the trial

court initially denied the motion based on a district split concerning the

applicability of section 768.73(2) in Engle cases, the Florida Supreme Court

ultimately decided in Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d

114, 125 (Fla. 2021), that the “1999 amendments to section 768.73 app[ied]

in Engle progeny wrongful death actions in which the decedent died after the

effective date of the amendments.”

Philip Morris then moved to vacate the trial court’s prior order denying

their motion to apply the current version of section 768.73 and for summary

judgment on Sommers’ punitive damages claims. Sommers filed a response

in opposition. On June 21, 2022, the trial court issued its order granting Philip

Morris’ motion for final summary judgment. This appeal timely followed.

DISCUSSION

This Court reviews the trial court’s order on the motion for summary

judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760

So. 2d 126, 130 (Fla. 2000). Issues involving the interpretation of a statute

are also reviewed de novo. Velez v. Miami-Dade Cnty. Police Dept., 934 So.

2d 1162, 1164 (Fla. 2006). The trial court’s finding of waiver, however, is

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reviewed for abuse of discretion. Schoeff v. R.J. Reynolds Tobacco Co., 232

So. 3d 294, 305 (Fla. 2017).

While Sommers does not dispute the trial court’s conclusion that the

current version of section 768.73(2) applied to her wrongful death action, she

nevertheless contends the trial court erred in applying the statute. Sommers

argues she was entitled to an evidentiary hearing to determine whether Philip

Morris had been sufficiently punished pursuant to section 768.73(2)(b) and

contends that the trial court erred by determining that such a hearing, or even

a subsequent trial on punitive damages, would be futile. Sommers

alternatively argues that even if section 768.73(2) barred her from recovering

punitive damages on her wrongful death claim, she was still entitled to

pursue punitive damages based on her survival claim relating to the

decedent’s coronary artery disease. As discussed in greater detail below, we

do not find merit in either of these arguments.

I. The trial court properly concluded Sommers abandoned her survival
claim and therefore could not recover punitive damages based on
the injury underlying that claim.

Beginning with the last issue first, the trial court was correct in

concluding that Sommers abandoned her survival claim and therefore could

not recover punitive damages based on the injury underlying that claim.

Sommers contends this determination was erroneous because her election

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to proceed with the wrongful death claim rather than the survival claim was

precipitated by “Philip Morris [ ] erroneously strip[ing] punitive damages from

the case[.]” According to Sommers, because she could no longer seek

punitive damages at trial, she “judged the wrongful death claim to be more

valuable than the survival claim” and chose to try only the wrongful death

claim.

This explanation, however, is not supported by the record. As

expressly stated in her complaint, Sommers’ alternative survival claim was

triggered only if Philip Morris disputed that the decedent died from smoking

cigarettes: “Alternatively, in the event . . . Defendant[ ] contend[s] that

Decedent[ ] died of some cause unrelated to smoking cigarettes containing

nicotine, Plaintiff asserts a claim for survival damages . . . .” This was the

extent of the “survival claim” Sommers pled. She never pled a separate count

for a survival claim related to the coronary artery disease injury she now

contends entitled her to punitive damages.

And, as Philip Morris expressly stipulated at trial, smoking cigarettes

caused the decedent’s lung cancer and death, therefore Sommers’ survival

claim as pled was rendered moot. Thus, as her statement at the beginning

of trial made clear, it was “as a result of the stipulation [by Philip Morris]” that

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Sommers elected “as between [the] wrongful death claim and survival to

proceed with wrongful death.”

II. The trial court properly concluded that section 768.73(2) barred
Sommers’ punitive damage claim.

Again, Sommers does not dispute on appeal that the current version

of section 768.73(2) applied to her wrongful death action. Instead, she

argues the trial court erred in denying her an evidentiary hearing to determine

whether Philip Morris had been sufficiently punished pursuant to section

768.73(2)(b). She contends the trial court erred in deciding that such a

hearing, or a trial on punitive damages, would be futile.

Section 768.73 provides:

(2)(a) Except as provided in paragraph (b), punitive
damages may not be awarded against a defendant
in a civil action if that defendant establishes, before
trial, that punitive damages have previously been
awarded against that defendant in any state or
federal court in any action alleging harm from the
same act or single course of conduct for which the
claimant seeks compensatory damages. For
purposes of a civil action, the term “the same act or
single course of conduct” includes acts resulting in
the same manufacturing defects, acts resulting in the
same defects in design, or failure to warn of the same
hazards, with respect to similar units of a product.

(b) In subsequent civil actions involving the same act
or single course of conduct for which punitive
damages have already been awarded, if the court
determines by clear and convincing evidence that the

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 amount of prior punitive damages awarded was
insufficient to punish that defendant’s behavior, the
court may permit a jury to consider an award of
subsequent punitive damages. In permitting a jury to
consider awarding subsequent punitive damages,
the court shall make specific findings of fact in the
record to support its conclusion. In addition, the court
may consider whether the defendant’s act or course
of conduct has ceased. Any subsequent punitive
damage awards must be reduced by the amount of
any earlier punitive damage awards rendered in state
or federal court.

§ 768.73, Fla. Stat. (emphasis added).

The initial question in applying section 768.73(2), as the trial court

properly identified, is whether punitive damages have previously been

awarded against Philip Morris in any state or federal court in any action

alleging harm from the same act or single course of conduct for which

Sommers sought compensatory damages.

The trial court properly concluded that Engle progeny actions, such as

Sommers’ action, allege that defendants, such as Philip Morris, engaged in

the same course of conduct because each Engle progeny complaint recites

the same findings from the Engle Phase I jury and asserts the same causes

of action for strict liability, negligence, fraudulent concealment, and civil

conspiracy. The trial court further found that Philip Morris established it had

paid approximately $198 million in punitive damages in Engle progeny cases

to date. Sommers does not dispute this number. Based on these findings, it

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was proper for the trial court to conclude that Sommers’ punitive damages

claim was barred by section 768.73(2)(a) unless Sommers could establish

that the exception under section 768.73(2)(b) applied.

This is where Sommers contends the trial court erred. She argues the

statute required the trial court to grant her an evidentiary hearing to allow her

to establish by clear and convincing evidence that Philip Morris had not been

sufficiently punished by the prior punitive damages awarded. The trial court,

however, concluded that any such hearing or subsequent trial on punitive

damages would be futile because even if $198 million in prior punitive

damages were insufficient to punish Philip Morris, for Sommers to recover

any punitive damages she would have to obtain an award greater than $198

million. See § 768.73(2)(b), Fla. Stat. (“Any subsequent punitive damage

awards must be reduced by the amount of any earlier punitive damage

awards rendered in state or federal court.”).

No such award, however, could be constitutionally valid because a

punitive damages award must bear a reasonable relationship to the

compensatory damages awarded, which in this case was $1 million. A ratio

of 198 to 1 would be excessive as a matter of law and would violate Philip

Morris’ due process rights:

[T]he typical measure used to determine whether a
‘reasonable relationship’ exists between the punitive

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 and compensatory damages is the ratio of the
awards. Although there is no bright-line standard, the
Florida Supreme Court observed in Engle that
“[s]ingle-digit [ratios] are more likely to comport with
due process, while still achieving the State's goals of
deterrence and retribution.” The reasoning in Engle
accords with the United States Supreme Court's
statement in State Farm that “in practice, few awards
exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will
satisfy due process.”

R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307, 314 (Fla. 1st DCA

2012) (quoting Engle, 945 So. 2d at 1264–65 and State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408, 425 (2003)) (internal citations omitted).

The trial court’s reasoning in this regard is sound and finds support in

Philip Morris USA Inc. v. Martin, 262 So. 3d 769 (Fla. 4th DCA 2018). In

Martin, the Fourth District, applying the current version of section 768.73,

held that section 768.73(2)(a) barred a punitive damages award to the

plaintiff because the defendants established before trial that punitive

damages in the amount of approximately $150 million had previously been

awarded against them in tobacco lawsuits based on the same conduct. Id.

at 772, 776. The Fourth District further held that “even if the exception in

(2)(b) did apply, the plaintiff still could not recover punitive damages because

. . . the prior punitive damages awards against the defendants would easily

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exhaust the plaintiff’s $650,000 punitive damages award [awarded at trial].”

Id. at 776 n.3.

While in that instance there was an actual amount of punitive damages

that had already been awarded to the plaintiff available for comparison, the

rationale is the same here. The trial court essentially considered what might

be the highest constitutionally valid award permissible and determined that

it would be exhausted by the prior punitive damages paid by Philip Morris for

the same conduct.

CONCLUSION

The trial court properly concluded that the current version of section

768.73(2), Florida Statutes, applied to Sommers’ wrongful death action and

barred her punitive damages claim. The trial court also properly rejected

Sommers’ alternative argument that she was entitled to pursue punitive

damages based on her survival claim because she abandoned the claim

prior to trial and therefore could not recover punitive damages based on the

injury underlying that claim.

Affirmed.

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