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Filing # 197991868 E-Filed 05/09/2024 02:53:03 PM
IN THE SIXTH JUDICIAL CIRCUIT, IN
AND FOR PINELLAS COUNTY, FLORIDA
CASE NO: 14-000482-CI-19
JOHN R. FREEMAN, Personal Representative
of the Estate of JUANITA S. FREEMAN,
Plaintifi(s),
vs.
R.J. REYNOLDS TOBACCO COMPANY,
PHILIP MORRIS USA, INC., et al.,
Defendant(s).
/
PLAINTIFF’S RESPONSE TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
MOTION FOR LEAVE TO AMEND SECOND AMENDED COMPLAINT TO ASSERT
A CLAIM FOR PUNITIVE DAMAGES AND PROFFER IN SUPPORT THEREOF AND
SUPPLEMENT THERETO
Plaintiff, by and through the undersigned counsel, files this Reply to the Defendants'
Response to Defendants Opposition to Plaintiff Motion for Leave to Amend Second Amended
Complaint to Assert a Claim for Punitive Damages and Proffer in Support Thereof and Supplement
Thereto and would show as follows:
Defendants’ argument against Plaintiff adding a request for punitive damages goes like this
(see Def. Opp. At 2): Plaintiff has not established a reasonable basis for recovering punitive
damages because she has not proffered a causal nexus between the Defendants’ conduct and her
injuries, and are essentially arguing that in order to simply plead punitive damages, Plaintiff needs
to demonstrate all the underlying elements (or the remaining unproven elements) of Engle class
membership AND each of the four counts pled at the motion to amend stage. This argument fails
because:
***ELECTRONICALLY FILED 05/09/2024 02:53:02 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 2
(1) It ignores that the question of punitive damages is determined solely by examining the
quality of a defendant’s conduct, not the elements of the claims pled;
(2) The legal standard for establishing entitlement to punitive damages does not vary
depending on the underlying legal theory or claim;
(3) It seeks to improperly avoid Defendants’ heavy burden that applies at later stages of the
case;
(4) Defendants argue the wrong legal standard for proving the causation element of the actions
pled (should the Court require Plaintiffs to prove the underlying elements at this stage).
In addition, § 768.73(2), Fla. Stat., is not a basis to deny a motion to amend seeking to add
punitive damages. This statutory section (and Sheffield) is inapplicable to the survival claim in
this case. And for the wrongful death claims, the statute explicitly states the steps that must occur
for its application regarding an award of punitive damages, all of which should occur after the
motion to amend stage.
I There is no authority supporting Defendants’ claim that a punitive damages proffer
requires proving the causation elements of the actions pled, or all of the underlying elements.
Long Standing Florida law does not require a punitive damages proffer to prove the
causation element of the underlying actions. See W.R. Grace & Co.-Conn. v. Waters, 638 So. 2d
502, 503 (Fla. 1994); Winn & Lovett Grocery Co. v. Archer, 171 So. 214, 221 (Fla. 1936). Instead,
only the quality of the defendant’s conduct is evaluated. 6 Fla. Prac., Personal Injury & Wrongful
Death Actions § 15:5 (2015-16 ed.).
The Engle decision itself recognized this: “Because a finding of entitlement to punitive
damages is not dependent on a finding that a plaintiff suffered a specific injury, an award of
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 3
compensatory damages need not precede a determination of entitlement to punitive damages.”
Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1262 (Fla. 2006) (emphasis added). If a plaintiff
need not prove a specific injury to be entitled to punitive damages at the trial stage, then certainly
a plaintiff need not prove a specific injury at the pleading stage.
And, more recently in Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1232 (Fla.
2016), the Florida Supreme Court held that “[t]he legal standard for establishing entitlement to
punitive damages does not vary depending on the underlying legal theory.” So, the decision of
whether to send a punitive damages request to the jury is not intertwined with whether a plaintiff
can prove the elements of the actions pled. Jd.
Nowhere did the Florida Supreme Court question whether the various plaintiffs could
prove the causation element of the underlying claims, and nothing about the Soffer opinion
changed how plaintiffs seek leave to amend to assert a claim for punitive damages. The issue in
Soffer was whether class members could “seek punitive damages under theories of negligence or
strict liability in their individual lawsuits . . . .” Soffer, 187 So. 3d at 1220. The First District held
that the res judicata effect of the Phase I findings in Engle meant that plaintiffs in Engle progeny
suits could not seek punitive damages on the non-intentional torts because the Engle class was not
permitted to do so. Soffer v. RJ. Reynolds Tobacco Co., 106 So. 3d 456, 460-61 (Fla. Ist DCA
2012). The Second District disagreed and said that nothing about the procedural posture of Engle
or the res judicata effect given to the Phase I findings precluded the individual plaintiffs from
asserting punitive damages on both the intentional and non-intentional torts in their individual
actions. Philip Morris v. Hallgren, 124 So. 3d 350, 354-58 (Fla. 2d DCA 2013).
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 4
The Florida Supreme Court agreed with the Second District and held “that the individual
members of the Engle class action are not prevented from seeking punitive damages on all claims
properly raised in their subsequent individual actions.” Soffer v. R.J. Reynolds Tobacco Co., 187
So. 3d 1219, 1221 (Fla. 2016). The case had nothing to do with the standard
for amending
complaints.
Florida’s asbestos litigation demonstrates this point as well. Sadly, this is not the first time
that manufacturers knowingly sold a defective product, and intentionally concealed this
information from the American public. In Owens-Corning Fiberglass Corp. v. Ballard, 749 So. 2d
483, 486-87 (Fla. 1999), the Florida Supreme Court summarized the corporate conduct supporting
the punitive damages claim as follows:
The clear and convincing evidence in this case revealed that for
more than thirty (30) years Owens—Corning concealed what it knew
about the dangers of asbestos. In fact, Owens—Corning's conduct
was even worse than concealment, it also included intentional and
knowing, misrepresentations concerning the danger of its asbestos
containing product, Kaylo. For instance, in 1956, Owens—Corning,
after having been told by the Saranac Laboratory that Kaylo dust
was “toxic”, and that asbestos was a carcinogen, advertised Kaylo
as being “non-toxic”. In 1972, after Owens—Corning developed an
asbestos free version of the Kaylo product, Owens—Corning
knowingly and intentionally contaminated the new product with
asbestos containing debris from its old Kaylo, and then intentionally
and knowingly claimed falsely that the new Kaylo product was
asbestos free. This was done despite Owens—Corning’s knowledge
that even slight exposures to asbestos in Kaylo could cause
mesothelioma, as it did in this case, an always fatal cancer of the
lining of the chest wall.
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 5
IL. The Engle Defendants themselves have acknowledged that punitive damages are not tied
to the individual causation questions of the underlying actions.
There is a more practical way to make this point. If Defendants are right, and the punitive
damages request is tied specifically to the underlying liability determinations, then there would be
multiple questions for the jury to determine punitive damages; one question for each of the actions
(negligence, strict liability, fraudulent concealment, and conspiracy to conceal). Instead, there is
just one question. For example, in a recent case tried by undersigned against defendants, the
question posed to the jury was:
Under the circumstances of this case, please state whether you find by
clear and convincing evidence that punitive damages are warranted
against:
Philip Morris USA Inc. Yes No
R.J. Reynolds Tobacco Company Yes, No.
See Attached Exhibit E (Phase I Verdict Form, Estate of Hoffner v. Philip Morris and R.J.
Reynolds, Case No. 16-29336, Miami-Dade Circuit Court, Sept. 21, 2022).
The Engle Defendants have actually acknowledged this very point in other Engle progeny
cases. Before the Florida Supreme Court decided Soffer, three of Florida’s district courts of appeal
held that Engle progeny plaintiffs could recover punitive damages only on claims for concealment
or conspiracy, not for the non-intentional torts (negligence and strict liability). R.J. Reynolds
Tobacco Co. v. Williams, 183 So. 3d 408, 409 (Fla. 3d DCA 2014); R.J. Reynolds Tobacco Co. v.
Ciccone, 123 So. 3d 604, 616 (Fla. 4th DCA 2013); Soffer v. R.J. Reynolds Tobacco Co., 106 So.
3d 456, 460 (Fla. Ist DCA 2012). The Second District Court of Appeal certified conflict, Philip
Morris USA, Inc. v. Hallgren, 124 So. 3d 350, 358 (Fla. 2d DCA 2013).
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 6
During the intervening four years before the Supreme Court’s Soffer decision, some of the
Engle progeny plaintiffs asked trial courts to include multiple punitive damages questions on the
verdict form in order to secure the jury’s punitive damages decision as to negligence and strict
liability, in the event the Florida Supreme Court ever reversed the First, Third and Fourth Districts.
The Engle Tobacco Defendants successfully blocked every attempt by making the very point we
make here— the punitive damages claim is not tied to the individual causation questions of the
underlying actions because punitive damages focus on the defendant’s conduct.
For example, in one of the Engle progeny cases pending in federal court, the federal trial
judge initially granted such a request, and ordered that the verdict form ask the jury “to separately
decide whether punitive damages are warranted as to Plaintiffs’ negligence claim, strict liability
claim, fraudulent concealment claim, and conspiracy claim,” and (to the extent it found punitive
damages warranted) “to separately determine the amount of punitive damages, if any, to award for
each cause of action.” Defendants’ Memorandum Regarding the Application of Soffer v. R.J.
Reynolds Tobacco Co., In Re: Engle Progeny Cases, Case No. 3:09-cv-10000 (M.D. Fla., Feb. 11,
2013) (Exhibit A). The Engle Defendants took the matter up with the federal judge presiding over
the Master Docket for all Engle progeny cases in federal court, and argued against this procedure
in the federal dockets because punitive damages focus on a defendant’s misconduct and the same
misconduct is the basis for the punitive damages sought for all the counts. For this reason, they
claimed, a count-by-count punitive damages determination would result in a duplicative award.
They successfully argued:
The Wilder Order threatens the imposition of multiplicative punitive
damages because it would allow the jury to base the punitive
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 7
damages verdicts for multiple underlying claims, in whole in part
[sic], on the same act or omission (and accompanying state of mind).
The evidence and argument in these cases cannot be neatly
segregated into separate compartments for each cause of action.
For example, progeny plaintiffs routinely attack Defendants’
conduct in making and selling filtered cigarettes, presenting experts
who opine that filters created the illusion of a safer cigarette but in
fact had no health benefit, and that the Defendants knew but
concealed that fact. The plaintiffs further assert that this same
alleged course of conduct underlies, and warrants punitive
damages on, each of their causes of action, i.e., that Defendants’
conduct with respect to filtered cigarettes was negligent, resulted in
a product that was defective, constituted fraud by concealment, and
reflected a conspiracy to conceal. The same is true of the plaintiffs
evidence and arguments on other fronts such as light/low tar
cigarettes, the use of ammonia, the use of flavorings and additives,
ete.
Ex. A, p. 4 (emphasis added). The Engle Defendants have made the same claim of prejudice in
the Florida state courts. See Exhibits B and C.
All of this makes clear that only the quality of the defendant’s conduct is evaluated when
determining whether to permit a request for punitive damages, not the causation elements of the
actions pled.
Til. By trying to convince the court that the proffer must establish each element (or the
remaining elements) of the underlying causes(s) of action and Engle class membership,
Defendants are improperly avoiding the stringent burdens imposed at later stages.
There is another fundamental reason that Defendants are wrong. Requiring proof of the
causation elements for the actions pled allows Defendants to circumvent the stringent protections
afforded for judicial review at stages later than the motion to amend stage. Even at this motion to
amend stage, the Defendants are asking the court to require a proffer to include all elements of the
underlying causes of action — including legal causation — as well as proffering evidence to show
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 8
that the punitive damages’ worthy conduct was a legal cause of Mrs. Freeman’s injuries. This
request far exceeds Plaintiff’s burden at the motion to amend stage.
The purpose of the punitive damages statute is not to scrutinize the underlying claim.
Section 768.72, Florida Statutes, requires only that a plaintiff make a reasonable showing to
establish a reasonable basis for recovering punitive damages. And, the standard is low—just
establishing that the request for punitive damages is not frivolous or groundless, in order to protect
the defendant from expending litigation resources to defend against a claim wholly lacking merit.
Kraft General Foods, Inc. v. Rosenblum, 635 So. 2d 106, 108 (Fla. 4th DCA 1994). If this Court
requires Plaintiffs to survive a defense motion for summary judgment on the merits of their
underlying claims, then that imposes a burden on Plaintiff not authorized by the law.
IV. Even if Plaintiff is required to prove causation at this stage, Defendants’ arguments on
those points apply the wrong legal standards.
A. Courts have consistently rejected the argument that evidence of specific conduct
and a specific defect is required for the product actions.
Even if the punitive damages request is intertwined with the underlying actions for
negligence and strict liability, proof of the specific negligent conduct or specific product defect
that caused harm to a particular Engle progeny plaintiff is not required. This argument by the Engle
Defendants has been consistently rejected by Florida courts. See, i.e. Philip Morris USA, Inc. v.
Douglas, 110 So.3d 419 (Fla. 2013). Furthermore, the United States Supreme Court has declined
to hear multiple, successive petitions, making this argument, including in Douglas. In their
certiorari petition, which was denied, Defendants' argument that Douglas needed review included:
The decision below excuses respondent and the thousands of
other Engle progeny _ plaintiffs from proving the essential elements
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Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 9
of their claims in two respects. First, based on the purported
preclusive effect of the Engle findings, the court held that Engle
progeny plaintiffs are not required to prove the most basic
“conduct elements” of their claims—i.e., that the cigarettes
smoked by the class member contained a specific defect, or that
petitioners’ conduct toward the class member was negligent.
Second, because it is impossible to identify which specific conduct
the Engle jury found tortuous, the court held that progeny
plaintiffs are not required to prove the ordinary legal-causation
element of their claims—e.g., that the specific defect they
allege (as opposed to some other aspect of the product) caused
the injury for which they seek compensation—and instead need
prove only that addiction to petitioners’ cigarettes caused the
injury.
Petition for Writ of Certiorari, Philip Morris USA Inc. v. Douglas, Case No. 13-191, cert. denied,
134 S.Ct. 332 (2013) (Exhibit D, at pp. 17-18).
So, even if the punitive damages request is intertwined with the underlying actions for
negligence and strict liability (which it is not), Plaintiffs are not required to prove the existence of
a specific defect or a specific negligent act. Nevertheless, Plaintiffs’ proffer is more than sufficient
to satisfy the relatively low standard that applies to a motion to amend the complaint.
As demonstrated, among other things, Plaintiff’s proffer establishes that Defendants
designed cigarettes to significantly enhance the addictiveness of the nicotine drug that naturally
exists in tobacco leaves (despite knowing long before the medical community that the carcinogens
found in cigarette smoke cause illness and death). Defendants took what was a harsh product that
was difficult to inhale, and transformed it into a smooth smoking experience so that smokers would
bring the nicotine deep into their lungs where it could best be absorbed into the body. Defendants
simultaneously highly engineered their product to accelerate the transport of nicotine to the brain
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 10
where it takes hold and forces physiological changes upon the brain’s neuronal chemistry, resulting
in an addiction so strong that it is comparable to a heroin addiction.
This decades-long engineering of cigarettes included two modifications that were touted
as ensuring the safeness of smoking. When Defendants were still denying that cigarette smoke
causes illnesses, it was marketing new designs (filtered cigarettes and low tar cigarettes) as
protecting smokers in the unlikely event that cigarette smoke poses a health risk. These designs
(and the numerous related modifications throughout the cigarette) actually increased the smoker’s
exposure to carcinogens, thereby increasing the likelihood of disease, which defendants knew long
before the medical community.
This effort was not insignificant. For more than 40 years, the Engle Defendants have
dedicated themselves to researching how to engineer cigarettes to make them more and more
addictive. The result was thousands of design features that worked together to addict smokers to
the nicotine drug found in tobacco leaves. This point was powerfully made by expert testimony
presented by the class action plaintiffs, which is found in the transcript of the Phase | class trial
submitted as part of Plaintiff’s proffer. Those experts testified about the stark increase in the
prevalence of lung cancer that accompanied America’s shift to smoking cigarettes. In the late 1800s
and early 1900s (when tobacco consumption consisted of snuff, chew tobacco, cigars and pipe
tobacco), lung cancer was one of the rarest of human diseases. That all changed in the 1920s and
1930s, which was about 10 to 15 years after manufactured cigarettes containing combustible
tobacco became the predominant form of tobacco consumption. The increase in lung cancer was
so dramatic that it was one of the most common causes of death by the 1960s. Once Americans
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 11
began deeply inhaling tobacco smoke into their lungs for the intended rapid absorption of nicotine,
the toxins in the smoke took hold, resulting in an epidemic oflung cancer, and many other illnesses
like chronic obstructive pulmonary disease and coronary artery disease.
B. Prentice does not address how a Plaintiff can prove reliance.
Prentice v. R.J. Reynolds Tobacco Co., 338 So.3d 831 (Fla. 2022) involves a Plaintiff’s
burden of proof at trial on the intentional tort claims and has nothing to do with the sufficiency
of a proffer at the motion to amend stage seeking punitive damages. In Prentice, the Florida
Supreme Court “resolved a district court conflict over what proof is required to prevail on the
reliance element” of a Plaintiff’s fraudulent concealment and conspiracy to commit fraudulent
concealment claims. Jd. at 834. Critically, the majority points out that “[O]ur decision today
resolves a district court conflict over whether an Engle progeny plaintiff must prove reliance on a
statement; it does not address how the plaintiff may prove such reliance.” Jd. at FN2 (italicized in
opinion).
Plaintiff’s proffer satisfies the relatively low standard that applies to a motion to amend the
complaint regarding evidence of reliance.
V. Section 768.73(2), Fla. Stat., is inapplicable to the survival damage claim specifically, and
in general, is inapplicable to the wrongful death claim at the motion to amend stage.
A. Sheffield makes clear that 768.73 would not apply to a survival damage Engle
progeny claim.
As defendants point out, Sheffield v. R.J. Reynolds Tobacco Co., 329 So.3d 114, 115 (Fla.
2021), only applies to wrongful death actions. See Def. Opp. at 19. In this complaint, Plaintiff
has pled both wrongful death and survival claims. The survival claims are Counts II, IV, VI and
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 12
VIII of the operative complaint. And while 768.73 should have no applicability at the motion to
amend stage — the applicable statute is 768.72(1) — it certainly should have no impact on the
survival damage counts because (a) Sheffield only applies to wrongful death cases and (b) in all
events, the survival claim arose and accrued prior to 1999 during the Engle class period.
B. Section 768.73(2), Fla. Stat., should not apply at the motion to amend stage to a
wrongful death claim.
Plaintiff’s motion for leave to amend is governed by § 768.72, Fla. Stat. Section 768.72,
Fla. Stat., was enacted in 1986 to require some showing that a plaintiff
has an evidentiary basis for
claiming punitive damages before obtaining financial discovery. It was amended in 1999, but the
central purpose of the statute remains: to prevent non-meritorious claims for punitive damages and
financial discovery by requiring a plaintiff to present evidence that a defendant engaged in conduct
warranting punitive damages.
Section 768.73, Fla. Stat., was also created in 1986 to limit punitive damages to three times
compensatory damages. In 1999, it was amended to greatly expand the amount of punitive
damages recoverable in certain situations, while limiting punitive damages in multiple cases for
the same or similar conduct or product defect. The statute contains counterbalanced provisions:
(2) (a) Except as provided in paragraph (b), punitive damages may
not be awarded against a defendant in a civil action if the 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.
Importantly for this litigation, and this case, there is a limitation on the application of (2)(a):
(b) In subsequent civil actions involving the same act or single
course of conduct for which punitive damages have already been
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 13
awarded, if the court determines by clear and convincing evidence
that the 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.
Critically, these two statutes create two different processes regarding punitive damages.
Section 768.72 is for determining whether a motion to amend to include punitive damages in the
case should be granted. Section 768.73 creates a multi-step and involved process — once punitive
damages are a part of the case — for a court to make different determinations, under a specified
burden of proof, regarding punitive damages.
Applying the plain language of the statutes then can only mean that 768.73 is inapplicable
at the motion to amend stage. They are two different statutes, and there is nothing in the text of §
768.72 which indicates that the legislature intended the “reasonable basis” to assert a punitive
damage claim to include satisfaction of or even application of § 768.73. Section 768.73(2) is a
separate statute that in total contains (in subsection a) a limitation regarding punitive damages,
(but in subsection b) but one that would only apply after the jury has rendered a verdict on an
amount. Combined, the structure and text of these statutes make clear that 768.73(2) has nothing
to do with pleading a claim for punitive damages.
As defendants point out, in Sommers v. Philip Morris USA, Inc., 2024 WL 948623, (Fla.
3d DCA Mar. 6, 2024), the Third District affirmed the trial courts application of § 768.73(2)(a) to
ultimately deny punitive damages on a wrongful death claim. However, the trial court’s
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Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 14
application of the statute was not at the motion to amend stage; rather, the trial court (after a
tortured procedural history subsequent to its granting plaintiff’s motion to amend to add punitive
damages) entered a summary judgment order based on it. Jd at 1-3. Sommers, nor the statutory
scheme, require the Court to consider 768.73(2) at the motion to amend stage. Moreover, Sommers
was affirming one trial court’s interpretation of the statute.
But should the Court consider analyzing 768.73(2)(a) at the motion to amend stage, the
Court could very easily determine that the stated $198 million paid by Philip Morris and $487
million paid by Reynolds in punitive damages are insufficient amounts to punish these defendants
for the abominable and indefensible course of conduct that is at issue in this case: a course of
conduct that harmed millions of smokers, including causing over 20 million deaths since 1964
(admissible, see Philip Morris v. LeDoux, 230 So.3d 530, 535-36 (Fla. 3d DCA 2017)); and a
course of conduct that a prior jury — the Engle jury — has actually already determined a sufficient
punitive damages amount for: $145 billion. By inviting the Court to apply 768.73(2)(a) at this
stage, if the Court were to determine that the stated amounts paid for punitive damages are
insufficient for their decades long disregard for the public’s health, then the defendants certainly
could not claim error due to its invitation.
WHEREFORE, Plaintiff’s motion to amend should be granted.
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 15
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve
to all Counsel on the attached list, this 9" day of May, 2024.
/s/ T. Hardee Bass
T. Hardee Bass
Florida Bar No.: 0011055
Attorney E-Mail: thb@searcylaw.com
Primary E-Mail: wpbtobaccoteam@searcylaw.com
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33605
Phone: (561) 686-6300
Fax: (561) 383-9443
Attorneys for Plaintiff
Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al.
Case No.: 14-000482-CI-19
Response to Defendants’ Opposition
Page 16
COUNSEL LIST
Cathy A. Kamm, Esquire
ckamm@shb.com: Stephanie E. Parker, Esquire
SHBPMAttyPinellas@shb.com separker@jonesday.com;
Razvan Axente, Esquire sberesheim@jonesday.com
raxente@shb.com; John M. Walker, Esquire
Terri L. Parker, Esquire jmwalker@jonesday.com
tparker@shb.com; Jones Day
SHBPMAttyPinellas@shb.com 1221 Peachtree Street, N.E., Suite 400
Natanel Wainer, Esquire Atlanta, GA 30361
wainer@shb.com Phone: (404) 521-3939
W. Edwards Muniz, Esquire Fax: (404) 581-8330
wmuniz@shb.com and Attorneys for R.J. Reynolds Tobacco
mbrammer@shb.com Company
SHBPMAttyPinellas@shb.com
Shook Hardy & Bacon, LLP
100 N Tampa Street, Suite 2900
Tampa, FL 33602
Phone: (813) 202-7101
Fax: (813) 221-8837
Attorneys for Philip Morris USA Inc.
Marty Bax, Esquire
mbax@shb.com
Shook, Hardy & Bacon, LLP
2555 Kansas City, MO 64108
Phone: (816) 474-6550
Fax: (816) 421-6547
Attorneys for Philip Morris USA, Inc.
Troy A. Fuhrman, Esquire
tfuhrman@hwhlaw.com;
reynolds@hwhlaw.com;
Hill Ward & Henderson, P.A.
101 E Kennedy Boulevard, Suite 3700
Tampa, FL 33602
Phone: (813)-221-3900
Fax: (813)-221-2900
Attorneys for R.J. Reynolds Tobacco
Company
IN THE SIXTH JUDICIAL CIRCUIT, IN
AND FOR PINELLAS COUNTY, FLORIDA
CASE NO: 14-000482-CI-19
JOHN R. FREEMAN, Personal Representative
of the Estate of JUANITA S. FREEMAN,
Plaintifi(s),
vs.
R.J. REYNOLDS TOBACCO COMPANY,
PHILIP MORRIS USA, INC., et al.,
Defendant(s).
/
PLAINTIFF’S RESPONSE TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
MOTION FOR LEAVE TO AMEND SECOND AMENDED COMPLAINT TO ASSERT
A CLAIM FOR PUNITIVE DAMAGES AND PROFFER IN SUPPORT THEREOF AND
SUPPLEMENT THERETO
EXHIBIT “A”
Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 1 of 12 PagelD 37050
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IN RE: ENGLE PROGENY CASES Case No. 3:09-CV-10000-TJC-JBT
DEFENDANTS’ MEMORANDUM REGARDING
THE APPLICATION OF SOFFER v. R.J. REYNOLDS TOBACCO CO.
Defendants Philip Morris USA Ine., R.J. Reynolds Tobacco Company, Lorillard
Tobacco Company, Liggett Group LLC, and Vector Group Ltd. submit this memorandum
regarding the application of Soffer v. R.J. Reynolds Tobacco Co.,__ So. 3d __, 2012 WL
5233477 (Fla. Ist DCA Oct. 24, 2012), reh’g denied, 2013 WL 11873 (Fla. Ist DCA Jan. 2,
2013), pursuant to the Court’s order of February 6, 2013 (Doc. 935).
Soffer holds that Engle progeny plaintiffs may not seek punitive damages on their
non-intentional tort claims. Nonetheless, in the recent Wilder case, this Court declined to
apply Soffer and instead ordered that the jury be instructed “to separately decide whether
punitive damages are warranted as to Plaintiffs’ negligence claim, strict liability claim,
fraudulent concealment ciaim, and conspiracy claim,” and (to the extent it found punitive
damages warranted) “to separately determine the amount of punitive damages, if any, to
award for each cause of action.” Jan. 29, 2013 Order, at 2 (Doc. 189 in Case No. 3:09-cv-
10{09-TJC-JBT) (“Wilder Order”). The Court should reconsider this approach. Defendants
are entitled to a verdict form that complies with state law. While the Court’s apparent goal
was to “preserve the record” pending further developments on Soffer, there is no fair or
feasible way to do so. A verdict form of the type the Court prescribed for Wilder would not
avoid the potential need for a retrial because it would present an impermissible risk of
Exhibit A
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multiple punishment for the same conduct — and of imposing a larger punitive award than the
jury intended, It also would taint the jury’s deliberations with the consideration of legally
unavailable damages. At the same time, the verdict form would severely prejudice
Defendants by giving a plaintiff four bites at the punitive apple instead of one.
This Court should implement Sofer in the same way that the Florida trial courts are
implementing it — by granting partial summary judgment in favor of Defendants on the
punitive damages claim to the extent it is predicated on strict liability and negligence and by
permitting the jury to reach the issue of punitive damages only ifthe piaintiff prevails on an
intentional tort claim. Any other result would be contrary to law, unworkable, and unduly
prejudicial to Defendants.
ARGUMENT
1 DEFENDANTS WOULD BE UNFAIRLY PREJUDICED BY A VERDICT
FORM THAT FAILS TO IMPLEMENT SOFFER
Defendants would be unfairly prejudiced by the use of any verdict form that fails to
implement Soffer for three reasons.
First, the Soffer decision is final and binding in the Florida courts, there is no
appellate authority to the contrary, and Defendants are entitled to a verdict form that
complies with state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). As detailed
in Defendants’ prior briefing (Doc. 871 in 3:09-cy-10000-JTC-JBT), the Court is bound to
follow Soffer because there is no “persuasive evidence that the highest state court would rule
otherwise.” Bravo v. United States, ST7 F.3d 1324, 1325 (11th Cir. 2009) (citation omitted).
While the Court has observed that there was a dissent in Soffer, the Eleventh Circuit has
made clear that “the fact that one of the three judges dissented” is not “a persuasive
Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 3 of 12 PagelD 37052
indication that the Florida Supreme Court would decide the issue differently,” and the federai
courts must apply the majority’s opinion “until such time, if any, as the Florida Supreme
Court has the inclination and opportunity to rule to the contrary.” McMahon v. Toto, 311
F.3d 1077, 1080 (11th Cir, 2002) (“Two is a majority of three, and a majority of participating
judges controls a court’s decision.”).
Second, a verdict form that attempts to defer the impact of Soffer for later resolution --
rather than simply applying the decision — would expose Defendants to the threat of double,
treble, or even quadruple punitive damages for overlapping conduct. It also may result ina
greater award than the jury intended ~ e.g., by treating as additive amounts the jury viewed as
concurrent and relating to the same conduct. Indeed, the risk of inflated damages is so grave
from Defendants’ perspective that in Wilder they felt compeiled to waive their right to invoke
Soffer (for purposes of that case only) in order to avoid the multiple punitive damages
interrogatories on the Court’s prescribed verdict form. See Joint Stipulation regarding Soffer
(Doe. 214 in Case No. 3:09-cv-10109-TJC-JBT).
The Wilder Order threatens the imposition of multiplicative punitive damages
because it would allow the jury to base the punitive damages verdicts for multiple underlying
claims, in whole in part, on the same act or omission (and accompanying state of mind). The
1 Nor does the First DCA’s certification of Soffer provide “persuasive evidence” that the
Florida Supreme Court would decide the matter differently. The First DCA certified Soffer
for discretionary review only on the basis of public importance, not conflict (there is none).
In such circumstances, the Florida Supreme Court’s acceptance of the certification (which to
date has not occurred) would not imply a likelihood of reversal, but only that the Florida
Supreme Court deemed the question sufficiently important to warrant its consideration. See,
e.g., Fla. Dept. of State v. Fla. State Conference of NAACP Branches, 43 So. 3d 662, 669
(Fla. 2010) (affirming decision of lower court in case in which court accepted certification of
an issue of “public importance”); Fla. Dept. of State v. Slough, 992 So. 2d 142, 150 (Fla.
2008) (same).
Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 4 of 12 PagelD 37053
evidence and argument in these cases cannot be neatly segregated into separate
compartments for each cause of action. For example, progeny plaintiffs routinely attack
Defendants’ conduct in making and selling filtered cigarettes, presenting experts who opine
that filters created the illusion of a safer cigarette but in fact had no health benefit, and that
the Defendants knew but concealed that fact. The plaintiffs further assert that this same
alleged course of conduct underlies, and warrants punitive damages on, each of their causes
of action, i.2., that Defendants’ conduct with respect to filtered cigarettes was negligent,
resulted in a product that was defective, constituted fraud by concealment, and reflected a
conspiracy to conceal. The same is true of the plaintiffs’ evidence and arguments on other
fronts such as light/low tar cigarettes, the use of ammonia, the use of flavorings and
additives, etc.
In these circumstances, a verdict form of the type prescribed by the Wilder Order
would invite a multiplicative award of punitive damages — and it would be impossible to
determine from the verdict form the correct amount of punitive damages to ultimately award,
regardless of whether Soffer is applied. Consider a verdict in which the jury finds in favor of
Plaintiff on all claims and writes $100,000 on each of the four lines on the Court’s Phase II
verdict form. A reviewing court could not tell whether the jury intended a single $100,000
award to punish exactly the same conduct underlying two or more claims, or whether it
intended some or each of the amounts to be cumulative in order punish different conduct.
Whether Soffer remains good law (meaning that punitive damages can be recovered only for
the two intentional tort claims) or is overturned (thus allowing punitive recovery on all four
claims), it would be impossible to know whether the jury intended to award $100,000,
Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 5 of 12 PagelD 37054
$400,000, or some amount in between. Any attempt to give effect to the verdict would create
the impermissible risk that the Court would impose an amount of punitive damages greater
than the jury intended and that Defendants would be suffer multiplicative punishment for the
same conduct.”
Exposing Defendants to the risk of multiple punitive damages would be improper
both as a matter of federal due process and under Florida law. See State Farm Mut. Auto.
Ins. Co. v, Campbell, 538 U.S. 408, 423 (2004) (federal due process prohibits juries from
imposing “multiple punitive damages awards for the same conduct”). Such awards violate
the “widely accepted prohibition on duplicative damages.” Gordon v. Pete's Auto Serv. of
Denbigh, 637 F.3d 454, 460 (4th Cir. 2011). Thus, Florida courts have found that “an award
of both treble damages and punitive damages for the same act amounts to a double recovery
or an excessive penalty.” Bill Terry's v. Atl. Motor Sales, 409 So. 2d 507, 509 (Fla. 1st DCA
1982) (citing John Mohr & Sons, Inc. v. Jahnke, 198 N.W.2d 363, 368 (Wis. 1972), which
found that “[t]wo penalties on the same or different theories for the same act violates basic
fairness and thus due process of law”); see also Trend Setter Villas v. Villas on Green, Inc.,
569 So. 2d 766, 767 (Fia. 4th DCA 1990) (same); Palm Beach Atl. Coll., inc. v, First United
Fund, Ltd., 928 F.2d 1538, 1545 (11th Cir. 1991) (same). Similarly, in Holmberg v.
Morrisette, 800 F.2d 205 (8th Cir. 1986), the court applied this rule to prohibit the plaintiff
2 This problem could not be mitigated by jury instructions; any attempt to do so would be
hopelessly confusing and would not create any assurance that the jury’s intent could be
determined from the verdict form. Cf Ramos v. Davis & Geck, Inc., 224 F.3d 30, 32 (1st
Cir. 2000) (“Although in many contexts we presume that a jury follows its instructions . . .
that presumption cannot extend so far that a jury is deemed to have made a complex damages
calculation in exactly the amount the district court believes its instructions require.”).
Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 6 of 12 PageiD 37055
from recovering punitive damages on both fraud and conversion claims. The Court noted:
“Fraud and conversion are separate legal theories of liability, but in reality defendants have
injured [the plaintiff] only once. Accordingly, they are to be punished only once, not as
many times as there are separate legal theories that have been found to fit the case.” Jd. at
212; see also Bruce Tansey Custom Carpentry v. Goodman, 33 So. 3d 70, 72 (Fla. 2d DCA
2610) (reversing a “separate punitive damage award” as “duplicative” of the first). In order
to avoid such an improper and unconstitutional outcome, the Court should apply Soffer and
instruct the jury to consider the question of whether punitive damages are warranted only if it
finds for the plaintiff on an intentional tort claim.
Third, in addition to posing an improper risk of multiple damages, the Wilder Order
also would prejudice the Defendants by distorting the jury’s deliberative process with the
consideration of legally unavailable damages. The verdict form would in effect instruct
jurors that they could award punitive damages for negligence and strict liability. But any
such instruction would be flatly contrary to Soffer — which is now (and Defendants expect
will remain) the law in Florida. If the jury is led to believe (incorrectly) that punitive
damages are permissible for strict liability and negligence, and begins in its deliberations to
discuss potential punitive damages for those claims, the entire deliberative process will have
been tainted by the incorrect instruction. For example, if the jury finds entitlement to
punitive damages for the intentional torts, there wil! be no way to know if the jury would
have done so (or awarded the same damages) if it had been properly instructed at the outset
that Plaintiff is permitted to seek punitive damages only on her intentional tort claims.
Providing the jury with instructions that are contrary to law would be improper, and presents
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an unacceptable risk of confusing or misleading the jury. See, e.g., Busby v. City of Orlando,
931 F.2d 764, 777 (1 1th Cir. 1991) (“where ‘there is uncertainty as to whether the jury was
actually misled, the [district court’s] erroneous instruction cannot be ruled harmless’”)
(citation omitted); Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115, 1121 (11th Cir. 1990) Gury
instructions must “show ‘no tendency to confuse or to mislead the jury with respect to the
applicable principles of law’”) (citations omitted).*
Il. THE COURT SHOULD IMPLEMENT SOF FER IN THE SAME MANNER AS
THE FLORIDA COURTS
Particularly given the enormous potential prejudice to the Defendants, the Court
should abandon the approach in the Wilder Order and instead ~ consistent with Erie and
Bravo — simply follow Soffer and use a verdict form that reflects Florida law as established
by that decision. No Florida court — appellate or trial — has ever prescribed an Engle progeny
verdict form that would instruct the jury to determine punitive damages on a claim-by-claim
basis. And, in every Florida state court trial to commence after Soffer, the courts have
followed and applied Soffer by posing a single punitive question that jurors will reach only if
the plaintiff prevails on an intentional tort claim.’ For example:
3 The questions the Court would include on the verdict
Preview
Filing # 197991868 E-Filed 05/09/2024 02:53:03 PM IN THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO: 14-000482-CI-19 JOHN R. FREEMAN, Personal Representative of the Estate of JUANITA S. FREEMAN, Plaintifi(s), vs. R.J. REYNOLDS TOBACCO COMPANY, PHILIP MORRIS USA, INC., et al., Defendant(s). / PLAINTIFF’S RESPONSE TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO AMEND SECOND AMENDED COMPLAINT TO ASSERT A CLAIM FOR PUNITIVE DAMAGES AND PROFFER IN SUPPORT THEREOF AND SUPPLEMENT THERETO Plaintiff, by and through the undersigned counsel, files this Reply to the Defendants' Response to Defendants Opposition to Plaintiff Motion for Leave to Amend Second Amended Complaint to Assert a Claim for Punitive Damages and Proffer in Support Thereof and Supplement Thereto and would show as follows: Defendants’ argument against Plaintiff adding a request for punitive damages goes like this (see Def. Opp. At 2): Plaintiff has not established a reasonable basis for recovering punitive damages because she has not proffered a causal nexus between the Defendants’ conduct and her injuries, and are essentially arguing that in order to simply plead punitive damages, Plaintiff needs to demonstrate all the underlying elements (or the remaining unproven elements) of Engle class membership AND each of the four counts pled at the motion to amend stage. This argument fails because: ***ELECTRONICALLY FILED 05/09/2024 02:53:02 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 2 (1) It ignores that the question of punitive damages is determined solely by examining the quality of a defendant’s conduct, not the elements of the claims pled; (2) The legal standard for establishing entitlement to punitive damages does not vary depending on the underlying legal theory or claim; (3) It seeks to improperly avoid Defendants’ heavy burden that applies at later stages of the case; (4) Defendants argue the wrong legal standard for proving the causation element of the actions pled (should the Court require Plaintiffs to prove the underlying elements at this stage). In addition, § 768.73(2), Fla. Stat., is not a basis to deny a motion to amend seeking to add punitive damages. This statutory section (and Sheffield) is inapplicable to the survival claim in this case. And for the wrongful death claims, the statute explicitly states the steps that must occur for its application regarding an award of punitive damages, all of which should occur after the motion to amend stage. I There is no authority supporting Defendants’ claim that a punitive damages proffer requires proving the causation elements of the actions pled, or all of the underlying elements. Long Standing Florida law does not require a punitive damages proffer to prove the causation element of the underlying actions. See W.R. Grace & Co.-Conn. v. Waters, 638 So. 2d 502, 503 (Fla. 1994); Winn & Lovett Grocery Co. v. Archer, 171 So. 214, 221 (Fla. 1936). Instead, only the quality of the defendant’s conduct is evaluated. 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 15:5 (2015-16 ed.). The Engle decision itself recognized this: “Because a finding of entitlement to punitive damages is not dependent on a finding that a plaintiff suffered a specific injury, an award of Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 3 compensatory damages need not precede a determination of entitlement to punitive damages.” Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1262 (Fla. 2006) (emphasis added). If a plaintiff need not prove a specific injury to be entitled to punitive damages at the trial stage, then certainly a plaintiff need not prove a specific injury at the pleading stage. And, more recently in Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1232 (Fla. 2016), the Florida Supreme Court held that “[t]he legal standard for establishing entitlement to punitive damages does not vary depending on the underlying legal theory.” So, the decision of whether to send a punitive damages request to the jury is not intertwined with whether a plaintiff can prove the elements of the actions pled. Jd. Nowhere did the Florida Supreme Court question whether the various plaintiffs could prove the causation element of the underlying claims, and nothing about the Soffer opinion changed how plaintiffs seek leave to amend to assert a claim for punitive damages. The issue in Soffer was whether class members could “seek punitive damages under theories of negligence or strict liability in their individual lawsuits . . . .” Soffer, 187 So. 3d at 1220. The First District held that the res judicata effect of the Phase I findings in Engle meant that plaintiffs in Engle progeny suits could not seek punitive damages on the non-intentional torts because the Engle class was not permitted to do so. Soffer v. RJ. Reynolds Tobacco Co., 106 So. 3d 456, 460-61 (Fla. Ist DCA 2012). The Second District disagreed and said that nothing about the procedural posture of Engle or the res judicata effect given to the Phase I findings precluded the individual plaintiffs from asserting punitive damages on both the intentional and non-intentional torts in their individual actions. Philip Morris v. Hallgren, 124 So. 3d 350, 354-58 (Fla. 2d DCA 2013). Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 4 The Florida Supreme Court agreed with the Second District and held “that the individual members of the Engle class action are not prevented from seeking punitive damages on all claims properly raised in their subsequent individual actions.” Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219, 1221 (Fla. 2016). The case had nothing to do with the standard for amending complaints. Florida’s asbestos litigation demonstrates this point as well. Sadly, this is not the first time that manufacturers knowingly sold a defective product, and intentionally concealed this information from the American public. In Owens-Corning Fiberglass Corp. v. Ballard, 749 So. 2d 483, 486-87 (Fla. 1999), the Florida Supreme Court summarized the corporate conduct supporting the punitive damages claim as follows: The clear and convincing evidence in this case revealed that for more than thirty (30) years Owens—Corning concealed what it knew about the dangers of asbestos. In fact, Owens—Corning's conduct was even worse than concealment, it also included intentional and knowing, misrepresentations concerning the danger of its asbestos containing product, Kaylo. For instance, in 1956, Owens—Corning, after having been told by the Saranac Laboratory that Kaylo dust was “toxic”, and that asbestos was a carcinogen, advertised Kaylo as being “non-toxic”. In 1972, after Owens—Corning developed an asbestos free version of the Kaylo product, Owens—Corning knowingly and intentionally contaminated the new product with asbestos containing debris from its old Kaylo, and then intentionally and knowingly claimed falsely that the new Kaylo product was asbestos free. This was done despite Owens—Corning’s knowledge that even slight exposures to asbestos in Kaylo could cause mesothelioma, as it did in this case, an always fatal cancer of the lining of the chest wall. Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 5 IL. The Engle Defendants themselves have acknowledged that punitive damages are not tied to the individual causation questions of the underlying actions. There is a more practical way to make this point. If Defendants are right, and the punitive damages request is tied specifically to the underlying liability determinations, then there would be multiple questions for the jury to determine punitive damages; one question for each of the actions (negligence, strict liability, fraudulent concealment, and conspiracy to conceal). Instead, there is just one question. For example, in a recent case tried by undersigned against defendants, the question posed to the jury was: Under the circumstances of this case, please state whether you find by clear and convincing evidence that punitive damages are warranted against: Philip Morris USA Inc. Yes No R.J. Reynolds Tobacco Company Yes, No. See Attached Exhibit E (Phase I Verdict Form, Estate of Hoffner v. Philip Morris and R.J. Reynolds, Case No. 16-29336, Miami-Dade Circuit Court, Sept. 21, 2022). The Engle Defendants have actually acknowledged this very point in other Engle progeny cases. Before the Florida Supreme Court decided Soffer, three of Florida’s district courts of appeal held that Engle progeny plaintiffs could recover punitive damages only on claims for concealment or conspiracy, not for the non-intentional torts (negligence and strict liability). R.J. Reynolds Tobacco Co. v. Williams, 183 So. 3d 408, 409 (Fla. 3d DCA 2014); R.J. Reynolds Tobacco Co. v. Ciccone, 123 So. 3d 604, 616 (Fla. 4th DCA 2013); Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456, 460 (Fla. Ist DCA 2012). The Second District Court of Appeal certified conflict, Philip Morris USA, Inc. v. Hallgren, 124 So. 3d 350, 358 (Fla. 2d DCA 2013). Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 6 During the intervening four years before the Supreme Court’s Soffer decision, some of the Engle progeny plaintiffs asked trial courts to include multiple punitive damages questions on the verdict form in order to secure the jury’s punitive damages decision as to negligence and strict liability, in the event the Florida Supreme Court ever reversed the First, Third and Fourth Districts. The Engle Tobacco Defendants successfully blocked every attempt by making the very point we make here— the punitive damages claim is not tied to the individual causation questions of the underlying actions because punitive damages focus on the defendant’s conduct. For example, in one of the Engle progeny cases pending in federal court, the federal trial judge initially granted such a request, and ordered that the verdict form ask the jury “to separately decide whether punitive damages are warranted as to Plaintiffs’ negligence claim, strict liability claim, fraudulent concealment claim, and conspiracy claim,” and (to the extent it found punitive damages warranted) “to separately determine the amount of punitive damages, if any, to award for each cause of action.” Defendants’ Memorandum Regarding the Application of Soffer v. R.J. Reynolds Tobacco Co., In Re: Engle Progeny Cases, Case No. 3:09-cv-10000 (M.D. Fla., Feb. 11, 2013) (Exhibit A). The Engle Defendants took the matter up with the federal judge presiding over the Master Docket for all Engle progeny cases in federal court, and argued against this procedure in the federal dockets because punitive damages focus on a defendant’s misconduct and the same misconduct is the basis for the punitive damages sought for all the counts. For this reason, they claimed, a count-by-count punitive damages determination would result in a duplicative award. They successfully argued: The Wilder Order threatens the imposition of multiplicative punitive damages because it would allow the jury to base the punitive Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 7 damages verdicts for multiple underlying claims, in whole in part [sic], on the same act or omission (and accompanying state of mind). The evidence and argument in these cases cannot be neatly segregated into separate compartments for each cause of action. For example, progeny plaintiffs routinely attack Defendants’ conduct in making and selling filtered cigarettes, presenting experts who opine that filters created the illusion of a safer cigarette but in fact had no health benefit, and that the Defendants knew but concealed that fact. The plaintiffs further assert that this same alleged course of conduct underlies, and warrants punitive damages on, each of their causes of action, i.e., that Defendants’ conduct with respect to filtered cigarettes was negligent, resulted in a product that was defective, constituted fraud by concealment, and reflected a conspiracy to conceal. The same is true of the plaintiffs evidence and arguments on other fronts such as light/low tar cigarettes, the use of ammonia, the use of flavorings and additives, ete. Ex. A, p. 4 (emphasis added). The Engle Defendants have made the same claim of prejudice in the Florida state courts. See Exhibits B and C. All of this makes clear that only the quality of the defendant’s conduct is evaluated when determining whether to permit a request for punitive damages, not the causation elements of the actions pled. Til. By trying to convince the court that the proffer must establish each element (or the remaining elements) of the underlying causes(s) of action and Engle class membership, Defendants are improperly avoiding the stringent burdens imposed at later stages. There is another fundamental reason that Defendants are wrong. Requiring proof of the causation elements for the actions pled allows Defendants to circumvent the stringent protections afforded for judicial review at stages later than the motion to amend stage. Even at this motion to amend stage, the Defendants are asking the court to require a proffer to include all elements of the underlying causes of action — including legal causation — as well as proffering evidence to show Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 8 that the punitive damages’ worthy conduct was a legal cause of Mrs. Freeman’s injuries. This request far exceeds Plaintiff’s burden at the motion to amend stage. The purpose of the punitive damages statute is not to scrutinize the underlying claim. Section 768.72, Florida Statutes, requires only that a plaintiff make a reasonable showing to establish a reasonable basis for recovering punitive damages. And, the standard is low—just establishing that the request for punitive damages is not frivolous or groundless, in order to protect the defendant from expending litigation resources to defend against a claim wholly lacking merit. Kraft General Foods, Inc. v. Rosenblum, 635 So. 2d 106, 108 (Fla. 4th DCA 1994). If this Court requires Plaintiffs to survive a defense motion for summary judgment on the merits of their underlying claims, then that imposes a burden on Plaintiff not authorized by the law. IV. Even if Plaintiff is required to prove causation at this stage, Defendants’ arguments on those points apply the wrong legal standards. A. Courts have consistently rejected the argument that evidence of specific conduct and a specific defect is required for the product actions. Even if the punitive damages request is intertwined with the underlying actions for negligence and strict liability, proof of the specific negligent conduct or specific product defect that caused harm to a particular Engle progeny plaintiff is not required. This argument by the Engle Defendants has been consistently rejected by Florida courts. See, i.e. Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla. 2013). Furthermore, the United States Supreme Court has declined to hear multiple, successive petitions, making this argument, including in Douglas. In their certiorari petition, which was denied, Defendants' argument that Douglas needed review included: The decision below excuses respondent and the thousands of other Engle progeny _ plaintiffs from proving the essential elements Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 9 of their claims in two respects. First, based on the purported preclusive effect of the Engle findings, the court held that Engle progeny plaintiffs are not required to prove the most basic “conduct elements” of their claims—i.e., that the cigarettes smoked by the class member contained a specific defect, or that petitioners’ conduct toward the class member was negligent. Second, because it is impossible to identify which specific conduct the Engle jury found tortuous, the court held that progeny plaintiffs are not required to prove the ordinary legal-causation element of their claims—e.g., that the specific defect they allege (as opposed to some other aspect of the product) caused the injury for which they seek compensation—and instead need prove only that addiction to petitioners’ cigarettes caused the injury. Petition for Writ of Certiorari, Philip Morris USA Inc. v. Douglas, Case No. 13-191, cert. denied, 134 S.Ct. 332 (2013) (Exhibit D, at pp. 17-18). So, even if the punitive damages request is intertwined with the underlying actions for negligence and strict liability (which it is not), Plaintiffs are not required to prove the existence of a specific defect or a specific negligent act. Nevertheless, Plaintiffs’ proffer is more than sufficient to satisfy the relatively low standard that applies to a motion to amend the complaint. As demonstrated, among other things, Plaintiff’s proffer establishes that Defendants designed cigarettes to significantly enhance the addictiveness of the nicotine drug that naturally exists in tobacco leaves (despite knowing long before the medical community that the carcinogens found in cigarette smoke cause illness and death). Defendants took what was a harsh product that was difficult to inhale, and transformed it into a smooth smoking experience so that smokers would bring the nicotine deep into their lungs where it could best be absorbed into the body. Defendants simultaneously highly engineered their product to accelerate the transport of nicotine to the brain Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 10 where it takes hold and forces physiological changes upon the brain’s neuronal chemistry, resulting in an addiction so strong that it is comparable to a heroin addiction. This decades-long engineering of cigarettes included two modifications that were touted as ensuring the safeness of smoking. When Defendants were still denying that cigarette smoke causes illnesses, it was marketing new designs (filtered cigarettes and low tar cigarettes) as protecting smokers in the unlikely event that cigarette smoke poses a health risk. These designs (and the numerous related modifications throughout the cigarette) actually increased the smoker’s exposure to carcinogens, thereby increasing the likelihood of disease, which defendants knew long before the medical community. This effort was not insignificant. For more than 40 years, the Engle Defendants have dedicated themselves to researching how to engineer cigarettes to make them more and more addictive. The result was thousands of design features that worked together to addict smokers to the nicotine drug found in tobacco leaves. This point was powerfully made by expert testimony presented by the class action plaintiffs, which is found in the transcript of the Phase | class trial submitted as part of Plaintiff’s proffer. Those experts testified about the stark increase in the prevalence of lung cancer that accompanied America’s shift to smoking cigarettes. In the late 1800s and early 1900s (when tobacco consumption consisted of snuff, chew tobacco, cigars and pipe tobacco), lung cancer was one of the rarest of human diseases. That all changed in the 1920s and 1930s, which was about 10 to 15 years after manufactured cigarettes containing combustible tobacco became the predominant form of tobacco consumption. The increase in lung cancer was so dramatic that it was one of the most common causes of death by the 1960s. Once Americans Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 11 began deeply inhaling tobacco smoke into their lungs for the intended rapid absorption of nicotine, the toxins in the smoke took hold, resulting in an epidemic oflung cancer, and many other illnesses like chronic obstructive pulmonary disease and coronary artery disease. B. Prentice does not address how a Plaintiff can prove reliance. Prentice v. R.J. Reynolds Tobacco Co., 338 So.3d 831 (Fla. 2022) involves a Plaintiff’s burden of proof at trial on the intentional tort claims and has nothing to do with the sufficiency of a proffer at the motion to amend stage seeking punitive damages. In Prentice, the Florida Supreme Court “resolved a district court conflict over what proof is required to prevail on the reliance element” of a Plaintiff’s fraudulent concealment and conspiracy to commit fraudulent concealment claims. Jd. at 834. Critically, the majority points out that “[O]ur decision today resolves a district court conflict over whether an Engle progeny plaintiff must prove reliance on a statement; it does not address how the plaintiff may prove such reliance.” Jd. at FN2 (italicized in opinion). Plaintiff’s proffer satisfies the relatively low standard that applies to a motion to amend the complaint regarding evidence of reliance. V. Section 768.73(2), Fla. Stat., is inapplicable to the survival damage claim specifically, and in general, is inapplicable to the wrongful death claim at the motion to amend stage. A. Sheffield makes clear that 768.73 would not apply to a survival damage Engle progeny claim. As defendants point out, Sheffield v. R.J. Reynolds Tobacco Co., 329 So.3d 114, 115 (Fla. 2021), only applies to wrongful death actions. See Def. Opp. at 19. In this complaint, Plaintiff has pled both wrongful death and survival claims. The survival claims are Counts II, IV, VI and Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 12 VIII of the operative complaint. And while 768.73 should have no applicability at the motion to amend stage — the applicable statute is 768.72(1) — it certainly should have no impact on the survival damage counts because (a) Sheffield only applies to wrongful death cases and (b) in all events, the survival claim arose and accrued prior to 1999 during the Engle class period. B. Section 768.73(2), Fla. Stat., should not apply at the motion to amend stage to a wrongful death claim. Plaintiff’s motion for leave to amend is governed by § 768.72, Fla. Stat. Section 768.72, Fla. Stat., was enacted in 1986 to require some showing that a plaintiff has an evidentiary basis for claiming punitive damages before obtaining financial discovery. It was amended in 1999, but the central purpose of the statute remains: to prevent non-meritorious claims for punitive damages and financial discovery by requiring a plaintiff to present evidence that a defendant engaged in conduct warranting punitive damages. Section 768.73, Fla. Stat., was also created in 1986 to limit punitive damages to three times compensatory damages. In 1999, it was amended to greatly expand the amount of punitive damages recoverable in certain situations, while limiting punitive damages in multiple cases for the same or similar conduct or product defect. The statute contains counterbalanced provisions: (2) (a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if the 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. Importantly for this litigation, and this case, there is a limitation on the application of (2)(a): (b) In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 13 awarded, if the court determines by clear and convincing evidence that the 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. Critically, these two statutes create two different processes regarding punitive damages. Section 768.72 is for determining whether a motion to amend to include punitive damages in the case should be granted. Section 768.73 creates a multi-step and involved process — once punitive damages are a part of the case — for a court to make different determinations, under a specified burden of proof, regarding punitive damages. Applying the plain language of the statutes then can only mean that 768.73 is inapplicable at the motion to amend stage. They are two different statutes, and there is nothing in the text of § 768.72 which indicates that the legislature intended the “reasonable basis” to assert a punitive damage claim to include satisfaction of or even application of § 768.73. Section 768.73(2) is a separate statute that in total contains (in subsection a) a limitation regarding punitive damages, (but in subsection b) but one that would only apply after the jury has rendered a verdict on an amount. Combined, the structure and text of these statutes make clear that 768.73(2) has nothing to do with pleading a claim for punitive damages. As defendants point out, in Sommers v. Philip Morris USA, Inc., 2024 WL 948623, (Fla. 3d DCA Mar. 6, 2024), the Third District affirmed the trial courts application of § 768.73(2)(a) to ultimately deny punitive damages on a wrongful death claim. However, the trial court’s Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 14 application of the statute was not at the motion to amend stage; rather, the trial court (after a tortured procedural history subsequent to its granting plaintiff’s motion to amend to add punitive damages) entered a summary judgment order based on it. Jd at 1-3. Sommers, nor the statutory scheme, require the Court to consider 768.73(2) at the motion to amend stage. Moreover, Sommers was affirming one trial court’s interpretation of the statute. But should the Court consider analyzing 768.73(2)(a) at the motion to amend stage, the Court could very easily determine that the stated $198 million paid by Philip Morris and $487 million paid by Reynolds in punitive damages are insufficient amounts to punish these defendants for the abominable and indefensible course of conduct that is at issue in this case: a course of conduct that harmed millions of smokers, including causing over 20 million deaths since 1964 (admissible, see Philip Morris v. LeDoux, 230 So.3d 530, 535-36 (Fla. 3d DCA 2017)); and a course of conduct that a prior jury — the Engle jury — has actually already determined a sufficient punitive damages amount for: $145 billion. By inviting the Court to apply 768.73(2)(a) at this stage, if the Court were to determine that the stated amounts paid for punitive damages are insufficient for their decades long disregard for the public’s health, then the defendants certainly could not claim error due to its invitation. WHEREFORE, Plaintiff’s motion to amend should be granted. Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 15 I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list, this 9" day of May, 2024. /s/ T. Hardee Bass T. Hardee Bass Florida Bar No.: 0011055 Attorney E-Mail: thb@searcylaw.com Primary E-Mail: wpbtobaccoteam@searcylaw.com Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33605 Phone: (561) 686-6300 Fax: (561) 383-9443 Attorneys for Plaintiff Freeman, Juanita S. E/O v. R.J. Reynolds Tobacco Company, et al. Case No.: 14-000482-CI-19 Response to Defendants’ Opposition Page 16 COUNSEL LIST Cathy A. Kamm, Esquire ckamm@shb.com: Stephanie E. Parker, Esquire SHBPMAttyPinellas@shb.com separker@jonesday.com; Razvan Axente, Esquire sberesheim@jonesday.com raxente@shb.com; John M. Walker, Esquire Terri L. Parker, Esquire jmwalker@jonesday.com tparker@shb.com; Jones Day SHBPMAttyPinellas@shb.com 1221 Peachtree Street, N.E., Suite 400 Natanel Wainer, Esquire Atlanta, GA 30361 wainer@shb.com Phone: (404) 521-3939 W. Edwards Muniz, Esquire Fax: (404) 581-8330 wmuniz@shb.com and Attorneys for R.J. Reynolds Tobacco mbrammer@shb.com Company SHBPMAttyPinellas@shb.com Shook Hardy & Bacon, LLP 100 N Tampa Street, Suite 2900 Tampa, FL 33602 Phone: (813) 202-7101 Fax: (813) 221-8837 Attorneys for Philip Morris USA Inc. Marty Bax, Esquire mbax@shb.com Shook, Hardy & Bacon, LLP 2555 Kansas City, MO 64108 Phone: (816) 474-6550 Fax: (816) 421-6547 Attorneys for Philip Morris USA, Inc. Troy A. Fuhrman, Esquire tfuhrman@hwhlaw.com; reynolds@hwhlaw.com; Hill Ward & Henderson, P.A. 101 E Kennedy Boulevard, Suite 3700 Tampa, FL 33602 Phone: (813)-221-3900 Fax: (813)-221-2900 Attorneys for R.J. Reynolds Tobacco Company IN THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO: 14-000482-CI-19 JOHN R. FREEMAN, Personal Representative of the Estate of JUANITA S. FREEMAN, Plaintifi(s), vs. R.J. REYNOLDS TOBACCO COMPANY, PHILIP MORRIS USA, INC., et al., Defendant(s). / PLAINTIFF’S RESPONSE TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO AMEND SECOND AMENDED COMPLAINT TO ASSERT A CLAIM FOR PUNITIVE DAMAGES AND PROFFER IN SUPPORT THEREOF AND SUPPLEMENT THERETO EXHIBIT “A” Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 1 of 12 PagelD 37050 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION IN RE: ENGLE PROGENY CASES Case No. 3:09-CV-10000-TJC-JBT DEFENDANTS’ MEMORANDUM REGARDING THE APPLICATION OF SOFFER v. R.J. REYNOLDS TOBACCO CO. Defendants Philip Morris USA Ine., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, Liggett Group LLC, and Vector Group Ltd. submit this memorandum regarding the application of Soffer v. R.J. Reynolds Tobacco Co.,__ So. 3d __, 2012 WL 5233477 (Fla. Ist DCA Oct. 24, 2012), reh’g denied, 2013 WL 11873 (Fla. Ist DCA Jan. 2, 2013), pursuant to the Court’s order of February 6, 2013 (Doc. 935). Soffer holds that Engle progeny plaintiffs may not seek punitive damages on their non-intentional tort claims. Nonetheless, in the recent Wilder case, this Court declined to apply Soffer and instead ordered that the jury be instructed “to separately decide whether punitive damages are warranted as to Plaintiffs’ negligence claim, strict liability claim, fraudulent concealment ciaim, and conspiracy claim,” and (to the extent it found punitive damages warranted) “to separately determine the amount of punitive damages, if any, to award for each cause of action.” Jan. 29, 2013 Order, at 2 (Doc. 189 in Case No. 3:09-cv- 10{09-TJC-JBT) (“Wilder Order”). The Court should reconsider this approach. Defendants are entitled to a verdict form that complies with state law. While the Court’s apparent goal was to “preserve the record” pending further developments on Soffer, there is no fair or feasible way to do so. A verdict form of the type the Court prescribed for Wilder would not avoid the potential need for a retrial because it would present an impermissible risk of Exhibit A Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 2 of 12 PagelD 37051 multiple punishment for the same conduct — and of imposing a larger punitive award than the jury intended, It also would taint the jury’s deliberations with the consideration of legally unavailable damages. At the same time, the verdict form would severely prejudice Defendants by giving a plaintiff four bites at the punitive apple instead of one. This Court should implement Sofer in the same way that the Florida trial courts are implementing it — by granting partial summary judgment in favor of Defendants on the punitive damages claim to the extent it is predicated on strict liability and negligence and by permitting the jury to reach the issue of punitive damages only ifthe piaintiff prevails on an intentional tort claim. Any other result would be contrary to law, unworkable, and unduly prejudicial to Defendants. ARGUMENT 1 DEFENDANTS WOULD BE UNFAIRLY PREJUDICED BY A VERDICT FORM THAT FAILS TO IMPLEMENT SOFFER Defendants would be unfairly prejudiced by the use of any verdict form that fails to implement Soffer for three reasons. First, the Soffer decision is final and binding in the Florida courts, there is no appellate authority to the contrary, and Defendants are entitled to a verdict form that complies with state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). As detailed in Defendants’ prior briefing (Doc. 871 in 3:09-cy-10000-JTC-JBT), the Court is bound to follow Soffer because there is no “persuasive evidence that the highest state court would rule otherwise.” Bravo v. United States, ST7 F.3d 1324, 1325 (11th Cir. 2009) (citation omitted). While the Court has observed that there was a dissent in Soffer, the Eleventh Circuit has made clear that “the fact that one of the three judges dissented” is not “a persuasive Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 3 of 12 PagelD 37052 indication that the Florida Supreme Court would decide the issue differently,” and the federai courts must apply the majority’s opinion “until such time, if any, as the Florida Supreme Court has the inclination and opportunity to rule to the contrary.” McMahon v. Toto, 311 F.3d 1077, 1080 (11th Cir, 2002) (“Two is a majority of three, and a majority of participating judges controls a court’s decision.”). Second, a verdict form that attempts to defer the impact of Soffer for later resolution -- rather than simply applying the decision — would expose Defendants to the threat of double, treble, or even quadruple punitive damages for overlapping conduct. It also may result ina greater award than the jury intended ~ e.g., by treating as additive amounts the jury viewed as concurrent and relating to the same conduct. Indeed, the risk of inflated damages is so grave from Defendants’ perspective that in Wilder they felt compeiled to waive their right to invoke Soffer (for purposes of that case only) in order to avoid the multiple punitive damages interrogatories on the Court’s prescribed verdict form. See Joint Stipulation regarding Soffer (Doe. 214 in Case No. 3:09-cv-10109-TJC-JBT). The Wilder Order threatens the imposition of multiplicative punitive damages because it would allow the jury to base the punitive damages verdicts for multiple underlying claims, in whole in part, on the same act or omission (and accompanying state of mind). The 1 Nor does the First DCA’s certification of Soffer provide “persuasive evidence” that the Florida Supreme Court would decide the matter differently. The First DCA certified Soffer for discretionary review only on the basis of public importance, not conflict (there is none). In such circumstances, the Florida Supreme Court’s acceptance of the certification (which to date has not occurred) would not imply a likelihood of reversal, but only that the Florida Supreme Court deemed the question sufficiently important to warrant its consideration. See, e.g., Fla. Dept. of State v. Fla. State Conference of NAACP Branches, 43 So. 3d 662, 669 (Fla. 2010) (affirming decision of lower court in case in which court accepted certification of an issue of “public importance”); Fla. Dept. of State v. Slough, 992 So. 2d 142, 150 (Fla. 2008) (same). Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 4 of 12 PagelD 37053 evidence and argument in these cases cannot be neatly segregated into separate compartments for each cause of action. For example, progeny plaintiffs routinely attack Defendants’ conduct in making and selling filtered cigarettes, presenting experts who opine that filters created the illusion of a safer cigarette but in fact had no health benefit, and that the Defendants knew but concealed that fact. The plaintiffs further assert that this same alleged course of conduct underlies, and warrants punitive damages on, each of their causes of action, i.2., that Defendants’ conduct with respect to filtered cigarettes was negligent, resulted in a product that was defective, constituted fraud by concealment, and reflected a conspiracy to conceal. The same is true of the plaintiffs’ evidence and arguments on other fronts such as light/low tar cigarettes, the use of ammonia, the use of flavorings and additives, etc. In these circumstances, a verdict form of the type prescribed by the Wilder Order would invite a multiplicative award of punitive damages — and it would be impossible to determine from the verdict form the correct amount of punitive damages to ultimately award, regardless of whether Soffer is applied. Consider a verdict in which the jury finds in favor of Plaintiff on all claims and writes $100,000 on each of the four lines on the Court’s Phase II verdict form. A reviewing court could not tell whether the jury intended a single $100,000 award to punish exactly the same conduct underlying two or more claims, or whether it intended some or each of the amounts to be cumulative in order punish different conduct. Whether Soffer remains good law (meaning that punitive damages can be recovered only for the two intentional tort claims) or is overturned (thus allowing punitive recovery on all four claims), it would be impossible to know whether the jury intended to award $100,000, Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 5 of 12 PagelD 37054 $400,000, or some amount in between. Any attempt to give effect to the verdict would create the impermissible risk that the Court would impose an amount of punitive damages greater than the jury intended and that Defendants would be suffer multiplicative punishment for the same conduct.” Exposing Defendants to the risk of multiple punitive damages would be improper both as a matter of federal due process and under Florida law. See State Farm Mut. Auto. Ins. Co. v, Campbell, 538 U.S. 408, 423 (2004) (federal due process prohibits juries from imposing “multiple punitive damages awards for the same conduct”). Such awards violate the “widely accepted prohibition on duplicative damages.” Gordon v. Pete's Auto Serv. of Denbigh, 637 F.3d 454, 460 (4th Cir. 2011). Thus, Florida courts have found that “an award of both treble damages and punitive damages for the same act amounts to a double recovery or an excessive penalty.” Bill Terry's v. Atl. Motor Sales, 409 So. 2d 507, 509 (Fla. 1st DCA 1982) (citing John Mohr & Sons, Inc. v. Jahnke, 198 N.W.2d 363, 368 (Wis. 1972), which found that “[t]wo penalties on the same or different theories for the same act violates basic fairness and thus due process of law”); see also Trend Setter Villas v. Villas on Green, Inc., 569 So. 2d 766, 767 (Fia. 4th DCA 1990) (same); Palm Beach Atl. Coll., inc. v, First United Fund, Ltd., 928 F.2d 1538, 1545 (11th Cir. 1991) (same). Similarly, in Holmberg v. Morrisette, 800 F.2d 205 (8th Cir. 1986), the court applied this rule to prohibit the plaintiff 2 This problem could not be mitigated by jury instructions; any attempt to do so would be hopelessly confusing and would not create any assurance that the jury’s intent could be determined from the verdict form. Cf Ramos v. Davis & Geck, Inc., 224 F.3d 30, 32 (1st Cir. 2000) (“Although in many contexts we presume that a jury follows its instructions . . . that presumption cannot extend so far that a jury is deemed to have made a complex damages calculation in exactly the amount the district court believes its instructions require.”). Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 6 of 12 PageiD 37055 from recovering punitive damages on both fraud and conversion claims. The Court noted: “Fraud and conversion are separate legal theories of liability, but in reality defendants have injured [the plaintiff] only once. Accordingly, they are to be punished only once, not as many times as there are separate legal theories that have been found to fit the case.” Jd. at 212; see also Bruce Tansey Custom Carpentry v. Goodman, 33 So. 3d 70, 72 (Fla. 2d DCA 2610) (reversing a “separate punitive damage award” as “duplicative” of the first). In order to avoid such an improper and unconstitutional outcome, the Court should apply Soffer and instruct the jury to consider the question of whether punitive damages are warranted only if it finds for the plaintiff on an intentional tort claim. Third, in addition to posing an improper risk of multiple damages, the Wilder Order also would prejudice the Defendants by distorting the jury’s deliberative process with the consideration of legally unavailable damages. The verdict form would in effect instruct jurors that they could award punitive damages for negligence and strict liability. But any such instruction would be flatly contrary to Soffer — which is now (and Defendants expect will remain) the law in Florida. If the jury is led to believe (incorrectly) that punitive damages are permissible for strict liability and negligence, and begins in its deliberations to discuss potential punitive damages for those claims, the entire deliberative process will have been tainted by the incorrect instruction. For example, if the jury finds entitlement to punitive damages for the intentional torts, there wil! be no way to know if the jury would have done so (or awarded the same damages) if it had been properly instructed at the outset that Plaintiff is permitted to seek punitive damages only on her intentional tort claims. Providing the jury with instructions that are contrary to law would be improper, and presents Case 3:09-cv-10000-WGY-JBT Document 943 Filed 02/11/13 Page 7 of 12 PagelD 37056 an unacceptable risk of confusing or misleading the jury. See, e.g., Busby v. City of Orlando, 931 F.2d 764, 777 (1 1th Cir. 1991) (“where ‘there is uncertainty as to whether the jury was actually misled, the [district court’s] erroneous instruction cannot be ruled harmless’”) (citation omitted); Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115, 1121 (11th Cir. 1990) Gury instructions must “show ‘no tendency to confuse or to mislead the jury with respect to the applicable principles of law’”) (citations omitted).* Il. THE COURT SHOULD IMPLEMENT SOF FER IN THE SAME MANNER AS THE FLORIDA COURTS Particularly given the enormous potential prejudice to the Defendants, the Court should abandon the approach in the Wilder Order and instead ~ consistent with Erie and Bravo — simply follow Soffer and use a verdict form that reflects Florida law as established by that decision. No Florida court — appellate or trial — has ever prescribed an Engle progeny verdict form that would instruct the jury to determine punitive damages on a claim-by-claim basis. And, in every Florida state court trial to commence after Soffer, the courts have followed and applied Soffer by posing a single punitive question that jurors will reach only if the plaintiff prevails on an intentional tort claim.’ For example: 3 The questions the Court would include on the verdict