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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