Motion-Secondary: Stuart Gates Plaintiff vs. R J Reynolds Tobacco Co, et al Defendant

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                                Filing # 36108442 E-Filed 01/04/2016 02:38:04 PM

IN THE CIRCUIT COURT FOR THE
17TH JUDICIAL CIRCUIT, IN AND FOR,
BROWARD COUNTY, FLORIDA
COMPLEX CIVIL DIVISION
CASE NO. 08-80000 (19)
JUDGE JOHN J. MURPHY III

IN RE: ENGLE PROGENY CASES

TOBACCO LITIGATION

Pertains To: Stuart Gates, 08-CV-025811 (19)
/

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
MOTION FOR LEAVE TO AMEND COMPLAINT.

Defendants Philip Morris USA Inc. (“PM USA”) and R.J. Reynolds Tobacco Company,
as successor by merger to Lorillard Tobacco Company, (collectively, “Defendants”), oppose
Plaintiffs’ Motion For Leave to Amend Complaint filed on December 9, 2015 (“Plaintiffs’
Motion”).

Plaintiffs’ Motion should be denied because it fails to satisfy the requirements for
pleading punitive damages set forth in section 768.72, Florida Statutes, and Florida Rule of Civil
Procedure 1.190(f). Before a plaintiff is authorized to plead a claim for punitive damages in
Florida, there first must be “a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1),
Fla. Stat. To establish a reasonable basis for recovery of punitive damages in this Engle progeny
case, Florida law and due process mandate that Plaintiffs proffer evidence showing that the
conduct by each Defendant underlying each of the claims on which they seek punitive damages

constitutes intentional misconduct that was a legal cause of Mr. Gates’ injuries, and that the

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** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 1/4/2016 2:38:04 PM.****CASE NO. 08-CV-025811 (19)

misconduct was directed by a high-ranking official employed by each Defendant acting with the
requisite mental state.

Plaintiffs’ proffer in this case consists of (1) selected generic internal company
documents, public statements, and government documents with no causal nexus to Mr. Gates’
alleged smoking-related injury, Pls.’ Mot. at 6-16, (2) generic deposition testimony from Dr.
Proctor, Pls’ Mot. at 6-9, (3) a recitation of the Engle Phase I findings, Pls. Mot. at 20-21, and (4)
excerpts from Mr. Gates’ own deposition testimony, Pls.’ Mot. at 16-19. This evidence does not
provide a reasonable basis for recovery of punitive damages on Plaintiffs’ fraudulent
concealment or conspiracy to conceal claims in this case, because Plaintiffs have proffered no
evidence (nor could they) that Mr. Gates justifiably relied on any statement by a Defendant
concealing or omitting material facts regarding the health effects or addictive nature of smoking.

Moreover, the Court should deny Plaintiffs’ attempt to withdraw the allegation of
comparative fault contained in their complaint. Plaintiffs’ counsel has made this maneuver in
numerous Engle-progeny cases, and has repeatedly abused the Court’s liberality in allowing
amendments to other complaints. This Court should not allow counsel to once again abuse this
privilege.

For all of these reasons, as explained in greater detail below, Plaintiffs’ Motion should be

denied in its entirety.!

| The arguments in this memorandum are made without prejudice to Defendants’ position that
Plaintiffs cannot seek punitive damages for a variety of other reasons.

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L PLAINTIFFS ARE NOT ENTITLED TO PLEAD PUNITIVE DAMAGES
UNTIL THEY PROFFER EVIDENCE OF MISCONDUCT BY EACH
DEFENDANT WITH A CAUSAL NEXUS TO MR. GATES’ INJURIES

Florida law is clear that “no claim for punitive damages shall be permitted unless there is
a reasonable showing by evidence in the record or proffered by the claimant which would
provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat.; see also Fla.
R. Civ. P. 1.190(t); Wolper Ross Ingham & Co. v. Liedman, 544 So. 2d 307, 308 (Fla. 3d DCA
1989) (plaintiff must “make a showing by proffer or through evidence in the record that some
reasonable basis exists to support recovery of punitive damages before the trial court permits a
pleading requesting such damages”). Defendants have a “substantive legal right not to be subject
to a punitive damages claim . . . until the trial court makes a determination that there is a

reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995); see also Simeon, Inc. v. Cox, 671 So. 2d 158 (Fla. 1996).

Under Florida law and federal and state due process requirements, Plaintiffs must proffer
evidence showing that each Defendant’s conduct underlying each of the claims on which
Plaintiffs seek punitive damages was intentional misconduct that was a legal cause of Mr.
Gates’ injuries, and that the conduct was directed by a high-ranking official of the Defendant
acting with the required mental state.” The legal cause requirement has long been reflected in
Florida’s standard jury instructions. The pertinent standard instruction states: “If you find for

(claimant) and against (defendant), and you also find that clear and convincing evidence shows

that the conduct of (managing agent, primary owner, or other person whose conduct may warrant

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The Florida Supreme Court has held that punitive damages may be imposed against a
corporation only if the allegedly wrongful conduct was undertaken by someone who is a
“managing agent or holds a policy-making position.” Schropp v. Crown Eurocars, Inc., 654 So.
2d 1158, 1161 (Fla. 1995).

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punitive damages without proof of a superior’s fault) was a substantial cause of [loss] [injury]
[or] [damage] to (claimant) and that such conduct warrants punitive damages under the standards
I have given you, then in your discretion you may determine that punitive damages are warranted
against (defendant).”” Fla. Std. Jury Instr. (Civ.) PD 1b(2).

Thus, courts in Engle progeny cases have consistently held that a plaintiff must proffer
evidence showing conduct of the defendants undertaken with the requisite mental state that has a
causal nexus to the smoker’s alleged injury.

For example, the trial court in Williams v. R.J. Reynolds Tobacco Co., No. 11-26313 CA
02 (Fla. 11th Cir. Ct. Sept. 14, 2012), denied the plaintiff's motion to assert claims for punitive
damages based on strict liability, fraudulent concealment, conspiracy to conceal, and negligence
claims where the plaintiffs proffer did not establish such a causal nexus. Critically, on the
plaintiff's appeal, the Third District affirmed the trial court’s decision with respect to all claims.
See Order On Pl.’s Mot. To Amend Compl. For Punitive Damages (Ex. 1), aff'd, R.J. Reynolds
Tobacco Co. v. Williams, No. 3D13-2099, 2014 WL 4344369, -- So. 3d -- (Fla. 3d DCA Sept. 3,
2014) (“We find no merit in Ms. Williams’ cross-appeal of the trial court’s denial of her motion
to assert a claim for punitive damages on her intentional tort claims, and . . . we find no basis to
support a claim for such damages on her remaining non-intentional tort (negligence and strict
liability) claims.”).

Likewise, the plaintiff in Chadwell v. Philip Morris USA Inc. proffered testimony that the
decedent smoker had been exposed to tobacco advertising and had “mentioned the Marlboro
Man being a masculine cigarette.” Order Denying Without Prejudice Pl.’s Mot. For Leave To
File A First Am. Compl. Adding A Claim For Punitive Damages at 2, Chadwell v. Philip Morris

USA Inc., No. 10-17931 CA 31 (Fla. 11th Cir. Ct. June 15, 2012) (Ex. 2). Judge Cynamon
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rejected the contention that such a statement could provide a reasonable basis for a punitive
damages claim, explaining: “This evidence does not provide a reasonable basis for seeking
punitive damages on the fraudulent concealment or agreement to conceal claims because
Plaintiff fails to proffer sufficient evidence that the decedent relied on any concealment
regarding the health effects of smoking.” Jd. (emphasis added).

Courts in other Engle progeny cases have reached the same result. See Order Denying
Plaintiffs Motion to Amend Complaint to Add a Claim for Punitive Damages, Ellis v. R.J.
Reynolds Tobacco Co. at 5-6, No. 10-CA-016308 (Fla. 13th Cir. Ct. Feb. 4, 2013) (denying leave
to amend to add punitive damages claims, reasoning in part: “The Plaintiff is . . . required to
proffer evidence which would provide a reasonable basis for recovery of punitive damages,
which for Plaintiff's claims of fraudulent concealment and conspiracy to commit fraudulent
concealment requires at least some evidence of Mrs. Ellis’ reliance on at least some tobacco
company’s misinformation. ... Even viewing this proffer in the light most favorable to the
Plaintiff, the Court does not find there is any evidence of Mrs. Ellis’ detrimental reliance on any

misrepresentation or misinformation of any tobacco company.”) (Ex. 3)

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See also Order Denying P1.’s Mot. For Leave To File Am. Compl. To Add Claims For
Punitive Damages, Blasco v. R.J. Reynolds Tobacco Co., No. 07-46473-CA01 (23) (Fla. 11th
Cir. Ct. Oct. 15, 2012) (denying plaintiff's motion in its entirety); Order Denying Without
Prejudice Pl.’s Am. Mot. For Leave To Amend Her Compl. To Plead Punitive Damages,
Cumbess v. R.J. Reynolds Tobacco Co., No. 2007-300-CA (Fla. 3d Cir. Ct. Apr. 24, 2012)
(denying plaintiff's motion to amend, because “she ha[{d] not made a ‘reasonable showing’ which
would provide a reasonable basis for the recovery of punitive damages, as required by § 768.72,
Fla. Stat.”); Order On Pls.’ Mot. To Amend Compl. To Add Punitive Damages, Gross
Negligence And To Properly Plead Comparative Fault, Ballard v. R.J. Reynolds Tobacco Co.,
No. 07-30336 CA 23 (Fla. 11th Cir. Ct. Jan. 25, 2012) (denying plaintiffs’ motion to amend
complaint to add punitive damages); Order Denying PI.’s Mot. For Leave To Claim Punitive
Damages, Debra Kay Cohen v. Philip Morris USA Inc., No. 07-46336-CA-21 (Fla. 11th Cir. Ct.
Dec. 16, 2011) (denying plaintiff's motion to add punitive damages in its entirety); Order On
Pl.’s Mot. For Leave To Amend Compl. To Plead Punitive Damages, In Re: Engle Progeny
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The same limitation applies as a matter of due process. The U.S. Supreme Court has
made clear that conduct “independent from the acts upon which liability was premised, may not
serve as the basis for punitive damages.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 422 (2003) (emphasis added); see also Philip Morris USA v. Williams, 549 U.S. 346, 355
(2007) (punitive damages can only be used to punish a defendant for “the conduct that harmed
the plaintiff’); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19, 21-22 (1991) (requiring “some
understandable relationship” between the conduct and plaintiff's alleged injury). Federal due
process requires that punitive damages only be awarded to punish the misconduct that actually
injured the person who is the subject of the claim for such damages. See Williams, 549 U.S. at
353-57 (holding that “the Constitution’s Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties,” and that federal
constitutional law obligates state courts to protect defendants against punitive damages awards
going beyond the harm caused to the smoker); State Farm, 538 U.S. at 423 (reversing an award
of punitive damages based on conduct that bore no relation to the plaintiff's injury). Thus, due
process does not permit punitive damages to be awarded for conduct directed at non-parties. See
Williams, 549 U.S. at 349 (holding that an award of punitive damages based on injury to
someone other than the plaintiff “would amount to a taking of ‘property’ from the defendant

without due process”); Smith v. Vining, 407 So. 2d 1048, 1049 (Fla. 3d DCA 1981) (it is

 

Cases Tobacco Litig. (Lewis), No. 2009-30058-CICI (Fla. 7th Cir. Ct. Nov. 15, 2011) (denying
plaintiff's motion, because “Plaintiff has failed to make such a proffer’ “that provides a
reasonable basis for the recovery of punitive damages as a condition to obtaining leave to assert a
claim for such damages”); Order On Defs.’ Mot. To Strike P1.’s Demand For Punitive Damages,
Espinosa y. Philip Morris USA Inc., No. 00-17357-CA-01 (Fla. 11th Cir. Ct. Oct. 20, 2010)
(granting defendant’s motion to strike punitive damages claim, because plaintiff failed to seek
leave to add punitive damages and proffer record evidence to provide a reasonable basis for
recovery of punitive damages) (collectively, Ex. 4)
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fundamental that “punitive damages must bear a relationship to the fact of injury or invasion of
legal right”). Because punitive damages cannot be awarded to Plaintiffs on the basis of conduct
that may have harmed non-parties but that is not shown to have been a proximate cause of Mr.
Gates’ alleged smoking-related injuries, evidence of such conduct does not provide a reasonable
basis to support recovery of punitive damages in this case.

IL. PLAINTIFFS’ PROFFER IN THIS CASE IS LEGALLY INSUFFICIENT TO
PROVIDE A BASIS FOR PUNITIVE DAMAGES

Plaintiffs’ proffer in this case consists of: (1) selected generic internal company
documents, public statements, and government documents with no causal nexus to Mr. Gates’
alleged smoking-related injury, Pls.’ Mot. at 6-16, (2) generic deposition testimony from Dr.
Proctor, Pls.’ Mot. at 6-9, (3) a recitation of the Engle Phase I findings, Pls.’ Mot. at 20-21, and
(4) excerpts from Mr. Gates’ own deposition testimony, Pls.’ Mot. at 16-19. Plaintiffs’ proffered
evidence does not provide a sufficient basis for punitive damages.

A. A Claim For Fraudulent Concealment And Conspiracy To Conceal
Requires Proof Of Reliance

A plaintiff seeking to recover on a claim for fraud must prove detrimental reliance. See,
e.g., Humana, Ine. v. Castillo, 728 So. 2d 261, 265 (Fla. 2d DCA 1999) (“Florida law imposes a
reliance requirement in an omissions case, which cannot be satisfied by assumptions.”). Indeed,
the Florida Supreme Court has recently confirmed that “Eng/e-progeny plaintiffs must certainly
prove detrimental reliance in order to prevail on their fraudulent concealment claims.” Hess v.
Philip Morris USA, Inc., 175 So. 3d 687, 698 (Fla. 2015). Thus, in Engle progeny cases as in
fraud cases generally, “[i]f a plaintiff claims to be misled, but cannot demonstrate a causal
connection between the defendant’s conduct and the plaintiff's misapprehension, the plaintiff

cannot recover.” Humana, Inc. v. Castillo, 728 So. 2d at 265.
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Moreover, a plaintiff cannot establish reliance through conjecture or speculation that the
individual was affected merely as a member of the public at large. See, e.g., id.; Morgan v.
Canaveral Port Auth., 202 So. 2d 884, 887 (Fla. 4th DCA 1967) (reliance must be proven, and
“[i]t cannot be assumed that the appellants relied to their detriment upon any act or omission on
the part of appellees”); Palmas Y Bambu, S.A. v. E.. DuPont de Nemours & Co., 881 So. 2d 565,
573 (Fla. 3d DCA 2004) (holding that plaintiff seeking recovery for fraud under the Florida
racketeering statute cannot “relax the reliance requirement” by alleging that defendant’s fraud
affected the “body of public information,” and citing with approval a ruling that “reliance cannot
be presumed due to a defendant’s subjection of ‘the whole market’ to deceptive advertising”);
Morgan vy. W.R. Grace & Co., 779 So. 2d 503, 506 (Fla. 2d DCA 2000) (plaintiff could not prove
reliance by showing that defendants created “various documents aimed at the general public . . .
[that] lulled the . . . public, including her, into a false sense of security about the safety of such
reclaimed land”).

Based on these principles, Florida law rejects “fraud on the market” theories and other
similar theories involving indirect proof, see Morgan v. W.R. Grace & Co.-Conn., 779 So. 2d at
506; Palmas, 881 So. 2d at 573, and several courts applying Florida law have rejected these
defective theories in the tobacco context.4 Accordingly, in all Engle progeny cases that have
gone to trial to date, courts have required the plaintiff to prove “legal causation,” which in the

context of a fraudulent concealment claim means that the plaintiff must prove detrimental

4 See Raulerson v. R.J. Reynolds Tobacco Co., 95-01820-CA, slip op. at 6-7 (Fla. 4th Cir. Ct.
Mar. 31, 1997) (Ex. 5); Joy v. Brown & Williamson Tobacco Co., No. 96-2645CIV-T24(B),
1998 WL 35229355, at *5 (M.D. Fla. May 8, 1998); Weiffenbach v. Philip Morris Inc., 96-1690-
CIV-T-24B, slip op. at 4-5 (M.D. Fla. June 20, 1997) (Ex. 6).

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reliance.* In fact, the plaintiff in the Virginia Williams case attempted to rely on a market-based
inference of reliance, see Virginia Williams Answer Brief at 66-67, 76 (Ex. 8), but the Third
District found “no merit” to that argument. Virginia Williams, 2014 WL 4344369 at *1.

Thus, to recover punitive damages on their claims for fraudulent concealment and
conspiracy to conceal under Florida law, Plaintiffs are required to demonstrate a causal
connection between Defendants’ conduct and Mr. Gates’ misapprehension.

B. Plaintiffs’ Proffer Is Insufficient To Provide A Reasonable Evidentiary Basis
For Punitive Damages

Plaintiffs’ proffer fails to demonstrate a reasonable evidentiary basis for recovery of
punitive damages on their fraudulent concealment and conspiracy claims, because Plaintiffs have
not proffered any evidence of Mr. Gates’ detrimental reliance on a statement by a Defendant
concealing or omitting material information regarding the health effects or addictive nature of
smoking, or any evidence demonstrating a causal nexus between the alleged misconduct of a
Defendant that forms the basis of his fraudulent concealment and conspiracy claims and Mr.
Gates’ alleged smoking-related injuries. Indeed, Plaintiffs have identified no statement that Mr.
Gates allegedly relied upon that was misleading because of any omitted or concealed
information.

Plaintiffs primarily attempt to base their punitive damages claim on internal company
documents, public statements, and generic government reports that have no causal nexus to Mr.
Gates’ alleged injuries. Pls.’ Mot. at 6-16. For example, Plaintiffs proffer a number of internal
company documents that discuss everything from cigarette design to marketing research to the
5 See, e.g., Oct. 19, 2012 Trial Tr. at 1823-25, Ballard v. R.J. Reynolds Tobacco Co., No.
07-30336-CA-23 (Fla. 11th Cir. Ct.); Nov. 22, 2011 Trial Tr. at 4474-75, In Re: Engle Progeny
Cases Tobacco Litig. (Sury), No. 2007-CA-1175-IXXX-MA (Fla. 4th Cir. Ct.) (collectively, Ex.

7).
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health risks of smoking. Even assuming, arguendo, that those documents concealed pertinent
information, Plaintiffs provide no evidence that Mr. Gates ever saw any of these internal
documents, let alone that he relied on any of them (or on a failure to disclose information in
them). See Order at 15, Berger v. Philip Morris USA, Case 3:09-cv-14157-WGY-HTS, slip op.
at 15 (M.D. Fla. Apr. 23, 2015) (Ex. 9) (entering judgment as a matter of law to Engle defendant
and recognizing “[t]o allow a finding of detrimental reliance to necessarily follow from nothing
more than generic evidence of PMUSA’s general conduct would be to deny the very essence of
Engle Ill and Douglas’).

Likewise, Plaintiffs’ proffer of government documents, such as reports by the Surgeon
General and Federal Trade Commission, do not provide a sufficient evidentiary basis for punitive
damages claims. These documents, containing general findings of fact regarding the health risks
of cigarette smoking and the historical actions of tobacco companies, are wholly unconnected to
Mr. Gates’ particular smoking history and alleged smoking-related injury. None of these
documents show a causal nexus between any Defendant’s conduct and Mr. Gates’ particular
injury and death, and as such, they are insufficient as a proffer to support the pleading of a claim
for punitive damages.

Plaintiffs next proffer the generic issue testimony of Dr. Robert Proctor. See Pls.’ Mot. at
6-9. Dr. Proctor’s generic testimony has nothing to do with Plaintiffs, and it certainly does not
establish a causal connection between Defendants’ conduct and Mr. Gates’ alleged smoking-
related injury. As a generic expert, Dr. Proctor does not know what, if anything, Plaintiffs saw,
read, heard, or relied upon. To the contrary, Dr. Proctor admits that he does not have any

information relating to any individual smoker in the Engle progeny litigation:

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Q: For example, you don’t actually have specific information
about any particular plaintiffs?

A: That’s true.

* ok *
Q: [Y]ou have no information about any specific plaintiff's
media exposure, correct?
A: That’s correct. My knowledge, insofar as I know about

that, would only be insofar as they are representative of a more
general United States phenomenon.

Trial Preservation Dep. of Dr. Robert Proctor at 295-96, 301, In Re: Engle Progeny Cases
Tobacco Litig. (All Cases), No. 2008 CA 80000 (Fla. 17th Cir. Ct. Dec. 12, 2008) (Ex. 10).

As numerous courts have held in Engle progeny cases, generic expert testimony like that offered
here from Dr. Proctor is insufficient to support the pleading of a claim for punitive damages. For
example, in the Jerome Cohen case, the plaintiff proffered Dr, Proctor’s testimony in an attempt
to establish detrimental reliance. The court ruled that the plaintiffs proffer of Dr. Proctor’s
testimony was insufficient to make the evidentiary showing required to plead a punitive damages
claim, explaining that “there is nothing in your offer of proof on your client’s reliance on that
comment [alleged statements of the Defendant testified to by Dr. Robert Proctor] to establish that
there is record evidence to go forward on the fraud, which would give rise to a claim for punitive
damages.” Dec. 18, 2009 Hr’g Tr. at 27, In re: Engle Progeny Cases Tobacco Litig. (J. Cohen),
No. 2007-CV-12370(19) (Fla. 17th Cir. Ct.) (emphasis added) (Ex. 11).

Finally, the excerpts of Mr. Gates’ deposition testimony proffered by Plaintiffs
concerning Mr. Gates’ supposed reliance on Defendants’ advertisements and representations
regarding the comparative safety of filtered cigarettes, Pls.” Mot. at 16-19, cannot possibly
provide a reasonable basis for the recovery of punitive damages. First, although Plaintiffs

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proffer Mr. Gates’ deposition testimony that he believed filtered cigarettes were safer for him,
they provide no evidence that he formed that belief based on any statement by the Defendants.
To the contrary, Mr. Gates testified that at some point he read an unspecified advertisement that
mentioned the health benefits of filtered cigarettes:

Q.... In terms of what you’ve told us, you told us that you recall

seeing something that said smoking a Marlboro Red filtered

cigarette is safer for you or something to that effect?

A. Right. The ad I’m talking about wasn’t just for a Marlboro.

Q. Okay.

A. What it was was an advertisement in the magazine I was

reading that smoking a filtered cigarette was either better or

healthier for you.
Stuart Gates Dep. at 133 (Ex. 12). Mr. Gates later admitted that this information may actually
have appeared in a magazine article and not an advertisement at all. /d. at 134. Nor could Mr.
Gates identify the author of this advertisement or article. Jd. at 135. See also id. at 194-196
(clarifying testimony).° Such testimony is insufficient to establish that Mr. Gates relied to his
detriment on specific fraudulent statements or omissions made by either Defendant.

Moreover, even if Plaintiffs had presented evidence—which they clearly did not—to
show that Mr. Gates relied on advertisements of Defendants in initiating and continuing to
smoke Marlboro Reds, there is no evidence that he would have stopped smoking or otherwise
changed his smoking behavior, and would as a result have avoided disease, if the supposed
. In addition, Plaintiffs’ proffer of Mr. Gates’ deposition testimony regarding his switch to
smoking Lark cigarettes, Plfs.’ Mot. at 19, is irrelevant as to the above-named Defendants. Lark
brand cigarettes were manufactured by Defendant Liggett Group LLC (“Liggett”). Thus, to the
extent Plaintiffs argue Mr. Gates’ testimony regarding Lark cigarettes is sufficient to support a
claim for punitive damages against Liggett, that evidence is irrelevant to Defendants PM USA

and RJR.
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statements and advertisements about Marlboro Reds had not been made. Likewise, Plaintiffs
have failed to proffer any case-specific evidence of an expert witness opining that such alleged
reliance occurred at a time that would have mattered (medically speaking) in terms of causing (or
avoiding) Mr. Gates’ injury.

Similarly, deposition testimony that Mr. Gates first bought Marlboro Reds because the
Marlboro man was “macho” and “a real cool looking guy,” Stuart Gates Dep. at 126 (Ex. 12),
cannot possibly provide a reasonable basis for punitive damages. As noted above, the court in
Chadwell rejected a nearly identical proffer that the decedent smoked because the “Marlboro
Man [was] a masculine cigarette.” Order Denying Without Prejudice PI.'s Mot. For Leave To
File A First Am. Compl. Adding A Claim For Punitive Damages at 2, Chadwell v. Philip Morris
USA Inc., No. 10-17931 CA 3 (Fla. 11th Cir. Ct. June 15, 2012) (Ex. 2).

In sum, Plaintiffs’ generic evidence and vague, self-serving testimony does not constitute
a “reasonable evidentiary basis” sufficient to establish the requisite detrimental reliance for
imposing punitive damages based on alleged fraud. In Chadwell, for example, the plaintiff
proffered similar statements concerning advertising in support of his punitive damages claim.
Chadwell Order at 2. As noted above, however, Judge Cynamon rejected the notion that such a
statement could provide a reasonable basis for a punitive damages claim, explaining: “This
evidence does not provide a reasonable basis for seeking punitive damages on the fraudulent
concealment or agreement to conceal claims because Plaintiff fails to proffer sufficient
evidence that the decedent relied on any concealment regarding the health effects of

smoking.” Id. (emphasis added) (Ex. 2), The same reasoning should apply here.

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Cc Plaintiffs’ Proffer of the Engle Phase I Findings Is Insufficient to
Demonstrate A Reasonable Basis For Recovery Of Punitive Damages

It is now settled that the Engle Phase I findings do not constitute a sufficient evidentiary
basis to support recovery of punitive damages. See Virginia Williams v. R.J. Reynolds Tobacco
Co., No. 11-26313 CA 02, 2014 WL 4344369, at *1 (Fla. 11th Cir. Ct. Sept. 14, 2012). In fact,
juries in Engle progeny cases are routinely instructed that they may not consider the Engle
findings “in any way” in deciding punitive damages questions. See, e.g., Nov. 14, 2014 Trial Tr.
Vol. 32 at 4588, Schleider v. R.J. Reynolds Tobacco Co., No. 13-6984 CA 24 (Fla. 11th Cir. Ct.)
(Ex. 13).” It necessarily follows that the Engle findings cannot provide the “reasonable basis for
recovery of such damages” section 768.72(1) requires. Courts have consistently ruled that
plaintiffs cannot rely on the Engle Phase I findings to prove punitive damages claims for several
reasons.

First, the Engle Phase I jury made its findings under a standard of proof more lenient than
the one required to obtain punitive damages. Specifically, because the Phase I findings related
only to the Engle jury’s determination of compensatory liability, they were made under a
“greater weight of the evidence” standard. See Engle Trial Tr. at 37578-79 (Ex.15). However,
punitive damages must be proven under the more rigorous “clear and convincing evidence”
standard. § 768.725, Fla. Stat.; see also Fla. Std. Jury Instr. (Civ.) PD la, 1(2).

Second, the Engle Phase I findings are wholly unconnected to Mr. Gates’ particular
smoking history and alleged smoking-related injury. The Engle Phase I jury made no specific

findings with respect to Mr. Gates. Mr. Gates did not testify during Phase I of the Engle case;

T See also, e.g., Sept. 4, 2014 Trial Tr. Vol. 27 at 3442-43, Baum v. R.J. Reynolds Tobacco Co.,
No. 10-60768 CA 20 (Fla. 11th Cir. Ct.); June 20, 2014 Trial Tr. at 4275:14-4276:1, Bakst v. RJ.
Reynolds Tobacco Co., No. 50-2008 CA 038863 (Fla. 15th Cir. Ct.) (Collectively, Ex. 14).

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nor was he deposed in that case. The Phase I jury did not consider or determine whether Mr.
Gates’ alleged smoking-related injury was caused by Defendants’ conduct, or whether
Defendants are liable to Plaintiffs as a result. See Engle, 945 So. 2d at 1267-68. Of course, the
Phase I jury could not have done so because, at the insistence of the plaintiff class, it was not
permitted to hear any evidence about Mr. Gates or any other individual smoker. Thus, the Engle
Phase I findings are wholly unconnected to Mr. Gates’ alleged injury, rendering those findings
insufficient as a proffer under section 768.72. Indeed, as noted above, courts in Engle progeny
cases have held repeatedly that the Engle findings do not constitute evidence showing a causal
nexus between any defendant’s conduct and any particular smoker’s injury; and therefore those
findings are insufficient as a proffer to support the pleading of a claim for punitive damages
under section 768.72. See supra at 3-7.

Third, allowing Plaintiffs to seek punitive damages based on the Engle Phase I findings is
inconsistent with the Florida Supreme Court’s decision to vacate the Phase I jury’s finding that
the defendants’ conduct rose to a level that would permit an award of punitive damages. See
Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1254-55 (Fla. 2006). Plaintiffs cannot rely on
findings from a prior case that have been vacated on appeal. See, e.g., Ciffo v. Pub. Storage
Mgmt., Inc., 622 So. 2d 1053, 1054 (Fla. 4th DCA 1993) (“A judgment which has been reversed
on appeal cannot be the basis of invoking the doctrine of res judicata.”); McAdam v. Thom, 610
So. 2d 510, 512 (Fla. 3d DCA 1992) (“Clearly, where a judgment is vacated or set aside, it is as
though no judgment had ever been entered.”), overruled on other grounds, 626 So. 2d 184 (Fla.
1993). In vacating the Phase I finding that the defendants’ conduct rose to a level that would
permit an award of punitive damages, the Florida Supreme Court made clear that the Phase I

jury’s findings relating to compensatory liability, including those afforded partial res judicata
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effect, did not suffice as a matter of law to establish a right to recover punitive damages for any
Engle class member. Engle, 945 So. 2d at 1263 (“[T]he Phase I jury did not determine whether
the defendants were liable to anyone.”). Instead, Engle required that any punitive damages
award “be based upon the facts and circumstances of the defendant’s conduct and the harm to the
plaintiff.” Jd. at 1265.

Fourth, the Phase I findings are insufficient because they do not establish that a managing
agent, executive, or high ranking official acting with the mental state required for an award of
punitive damages undertook the conduct that resulted in Plaintiff's alleged injury. See Fla. Std.
Jury Instr. (Civ.) PD 1(2); see also Schropp y. Crown Eurocars, Inc., 654 So. 2d 1158 (Fla.
1995). The Phase I jury was not required to find any such facts. All the jury was required to
find -- and all that it found -- was that employees of the defendants (regardless of their status
within the company) engaged in unspecified tortious conduct. That finding cannot sustain a
claim for punitive damages. See Estate of Despain v. Avante Grp., Inc., 900 So. 2d 637, 640-41
(Fla. Sth DCA 2005).

For these reasons, the Engle findings cannot provide the “reasonable evidentiary basis”
required to support Plaintiffs’ request for punitive damages.

D. Plaintiffs Cannot Cure This Evidentiary Deficiency By Relying On The First
District’s Decision In Martin

Plaintiffs contend that the First District Court of Appeal’s decision in R.J. Reynolds
Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010), alters the standard for reliance in

this case. See Pls.’ Mot. at 14-168 In Martin, the First District held, for the purposes of

* The Fourth District has cited Martin when rejecting challenges to the sufficiency of the

evidence on plaintiff's fraud claims in Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th
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upholding a jury verdict on the fraudulent concealment claim for compensatory damages, that
based on a post-trial review of the record evidence in that case, the jury could have inferred the
smoker’s reliance based on evidence of what the court characterized as “pervasive misleading
advertising campaigns” and “the false controversy created by the tobacco industry . . . aimed at
creating doubt among smokers that cigarettes were hazardous to health.” Jd. at 1069-70. Martin
does not apply here for several reasons.

First, Martin has no bearing on whether Plaintiffs have demonstrated a reasonable
evidentiary basis for recovery of punitive damages on their fraudulent concealment and
conspiracy claims, as required for leave to plead a punitive damages claim at this stage of the
proceedings. In Martin, the First District held only in a post-trial context, based on a review of
the entire body of evidence presented at trial, that for the purposes of sustaining a verdict for the
plaintiff on a fraudulent concealment claim for compensatory damages, the jury there was
permitted to infer the smoker’s reliance. Martin, 53 So. 3d at 1069-70. Aside from the fact that
this Court cannot determine at this juncture what evidence will be presented at trial that could
support or defeat such an inference, the claim for compensatory damages that was the subject of
the ruling in Martin was governed by a “greater weight of the evidence” standard of proof. See,
e.g., Wieczoreck v. H&H Builders, Inc., 475 So. 2d 227, 228 (Fla. 1985); Passaat, Ltd. v. Better,
654 So. 2d 980, 981 (Fla. 4th DCA 1995). By contrast, Florida law requires that the question of
whether punitive damages are warranted must be determined based on a much higher “clear and
convincing evidence” standard of proof. See, e.g., § 768.725, Fla. Stat; see also Fla. Std. Jury

Instr. (Civ.) PD la. Plaintiffs have no support for the proposition that a presumption or inference

 

DCA Sept. 12, 2012), Philip Morris USA, Inc. v. Naugle, 103 So. 3d 944 (Fla. 4th DCA June 22,
2012), and Philip Morris USA Inc. v. Putney, 117 So. 3d 798 (Fla. 4th DCA 2013).

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of reliance of the type discussed in Martin can suffice to demonstrate culpability for punitive
damages under a clear and convincing evidence standard of proof. Indeed, it is inconceivable
that an inference of reliance would be compatible with that higher standard.

Second, Martin did not (and could not) eliminate the federal due process requirement that
punitive damages may only be awarded to punish conduct that actually caused the injury to the
smoker seeking such damages. See Williams, 549 U.S. at 353-57 (holding that “the
Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a
defendant for injury that it inflicts upon nonparties,” and that federal constitutional law obligates
state courts to protect defendants against punitive damages awards going beyond the injury
caused to the plaintiff); State Farm, 538 U.S. at 423 (reversing an award of punitive damages
based on conduct that bore no relation to the plaintiffs injury). To the contrary, the Martin court
never addressed the issue of whether an inference of reliance satisfies the federal due process
requirement of proof of a causal nexus. This limitation independently requires a causal nexus
between the conduct to be punished and the injury allegedly suffered by the smoker. Williams,
549 U.S. at 349 (holding that an award of punitive damages based on harm to someone other
than the plaintiff “would amount to a taking of ‘property’ from the defendant without due
process”): Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19, 21 (1991) (requiring “some
understandable relationship” between the conduct and the plaintiff's alleged harm); accord
Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So. 2d 43, 48 (Fla. 3d DCA 2006)
(“Punitive damages must be proportionate to the actual harm inflicted on the plaintiff, and since
the actual harm was not ascertainable, the punitive damages claim must fail”).

Consequently, in addition to protecting Defendants from baseless punitive damages

claims, the requirements of section 768.72 and rule 1.190 provide an early protection against
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violations of Defendants’ rights under federal constitutional law. Under section 768.72, a
plaintiff may not even assert a claim for punitive damages without showing a “reasonable
evidentiary basis for recovery” of such damages. Because only conduct that caused Mr. Gates’
alleged smoking-related injury can provide a constitutional basis for punitive damages here,
Plaintiffs must make a proffer that establishes a nexus between Defendants’ allegedly punishable
conduct for their fraud-based claims and Mr. Gates’ alleged smoking-related injuries.

Finally, to the extent that Martin ruled that the reliance required for proof of fraud can be
inferred, that decision is inconsistent with the overwhelming weight of authority in Florida that
prohibits the stacking of inferences. Any attempt to apply the Martin inference to facilitate the
pleading of a punitive damages claim under section 768.72 and rule 1.190(f) requires not merely
the use of a single inference, but a succession of dependent inferences. Under Martin, the jury
would be inferring, based upon the alleged “pervasiveness” of cigarette advertising, not only that
Mr. Gates read or heard a statement by Defendants, but further that the statement was misleading
because it concealed or omitted material information regarding the health risks of smoking, that
Mr. Gates was misled by the statement, and that he would not have started smoking or would
have quit smoking (and thereby avoided his alleged smoking-related injury) if not for the
statement concealing or omitting that information. Yet Plaintiffs have proffered no evidence that
Mr. Gates ever saw any of the documents or advertisements they have proffered, let alone that he
relied on any of them in any way. To hold that Mr. Gates’ reliance is established based on those
materials, this Court would be required to rule that the jury may infer that, as a member of the
general public, Mr. Gates (a) was exposed to the advertisements; (b) read or heard the
advertisements; (c) was misled by some statement in the advertisements that rendered them

materially false; (d) changed his smoking behavior in reliance on that statement in the
19

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advertisements; and (e) contracted a smoking-related disease that would not have occurred but
for the fact that he read and relied on those advertisements.

Such a stacking of inferences is impermissible under controlling Florida authority. See,
e.g., Nielsen v. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960) (“[I]f a party to a civil action
depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it
cannot construct a further inference upon the initial inference in order to establish a further fact
unless it can be found that the original inference was established to the exclusion of all other
reasonable inferences.) (emphasis added); Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th
DCA 2008) (“The rule that an inference may not be stacked on another inference is designed to
protect litigants from verdicts based upon conjecture and speculation.”) (citation omitted); Cohen
v. Arvin, 878 So. 2d 403, 405 (Fla. 4th DCA 2004) (affirming summary judgment for defendant
on plaintiff's conspiracy to commit tortious interference with business relationships claim “on
the basis that the claim relied on impermissible inference stacking”). Thus, to the extent that it
could be interpreted to authorize Mr. Gates’ reliance to be inferred for purposes of recovering
punitive damages on the fraud-based claims in this case, Martin is contrary to the Florida
Supreme Court’s decision in Nielsen and its progeny, including Fourth District decisions.

The foregoing analysis demonstrates that the inference of reliance adopted by the First
District in Martin cannot properly be applied in this pretrial context to satisfy the requirement
that a plaintiff must make a reasonable showing that punitive damages are recoverable by
proffering evidence from which the jury could find that Defendants’ punishable conduct caused
Mr. Gates’ alleged smoking-related injury. Plaintiffs have failed to proffer any evidence of any
detrimental reliance by Mr. Gates on any misleading statement allegedly made by a Defendant

here. Because proof of fraud must be based on such evidence of individualized reliance — not on
20

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compounded assumptions that all members of the public who smoked cigarettes were induced to
do so by Defendants’ advertising, and that any resulting injury those smokers suffered was
caused by their reliance on that advertising — Plaintiffs’ request for leave to amend his complaint
to plead punitive damages claims should be denied.
Il. PLAINTIFFS SHOULD NOT BE PERMITTED TO WITHDRAW THEIR
ADMISSION THAT MR. GATES BEARS SOME FAULT FOR CAUSING HIS
OWN INJURIES
This Court should also deny Plaintiffs’ request to amend their complaint to withdraw
their allegation of comparative fault. In the operative complaint, Plaintiffs unequivocally
admitted that Mr. Gates “bears some measure of fault” for causing his own injuries:
The Smoking Plaintiff bears some measure of fault, but less than
100% of the applicable fault, for causing his respective smoking-
related injuries. The Smoking Plaintiff’s acts or omissions relating
to the frequency and duration of his efforts to quit smoking were a
partial proximate cause, in combination with the acts and
omissions of Defendants, of his injuries. The Plaintiff therefore
seeks apportionment of fault and damages on all Counts other than
those alleging intentional torts.
Am. Compl. § 30 (Ex. 16). Plaintiffs now seek to repudiate this admission, presumably on the
basis that Mr. Gates now believes he bears no fault for his injuries. The Court should not
condone such gamesmanship.”
Under Florida law, “a party is bound by the party’s own pleadings.” Fernandez v.
Fernandez, 648 So. 2d 712, 713 (Fla. 1995). Thus, “[a]dmissions in the pleadings are accepted
as facts without the necessity of further proof.” City of Deland v. Miller, 608 So. 2d 121, 122

(Fla. Sth DCA 1992) (citing Carvell v. Kinsey, 87 So. 2d 577, 579 (Fla. 1956)). While Florida

c Further highlighting the lack of consistency on the issue of comparative fault, at his

deposition, Mr. Gates first testified that he believed he was partially at fault before later
repudiating that testimony. Compare Stuart Gates Dep. at 648-55 (admitting fault) with 675-76
(repudiating prior testimony) (Ex. 12).

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Rule of Civil Procedure 1.190 “freely” permits plaintiffs to amend pleadings upon “leave of the
court,” the trial court maintains discretion to deny a motion to amend where the privilege has
been abused. See Noble v. Martin Mem. Hosp. Ass'n, 710 So. 2d 567, 569 (Fla. 4th DCA 1997).
In particular, the trial court’s “liberality” to amend “diminishes as the case progresses to trial.”
Versen v. Versen, 347 So. 2d 1047, 1050 (Fla. 4th DCA 1977).

Here, unlike the typical cases in which a plaintiff seeks leave to amend his complaint,
Plaintiffs are not seeking to add an affirmative defense or an allegation that was available all
along but was simply omitted from the prior pleading, see Quality Roof Servs., Inc. v. Intervest
Nat'l Bank, 21 So. 3d 883, 884-85; Hutson vy. Plantation Open MRI, LLC, 66 So. 3d 1042, 1044-
45 (Fla. 4th DCA 2011), or to assert an additional claim that arose or was discovered during the
litigation, see PNC Bank, N.A. v. Progressive Employer Servs. IT, 55 So. 3d 655, 659-60 (Fla. 4th
DCA 2011) (defendant should have been allowed to amend pleading to assert counterclaim that
became ripe during litigation); Dimick v. Ray, 774 So. 2d 830, 832-33 (Fla. 4th DCA 2000)
(plaintiff should have been allowed to add claim of which he became aware during discovery).
Instead, Plaintiffs wish to jettison an admission against interest, presumably in order to forestall a
potential motion for summary judgment.

This Court should not allow Plaintiffs to likewise abuse Rule 1.190’s liberal amendments
policy to avoid their prior admission of fault. Plaintiffs’ counsel had an ethical obligation to
ensure that the operative complaint accurately set forth the facts and his client’s contentions.
The Florida Rules of Professional Conduct require Plaintiffs’ counsel to competently represent
his client, see Fla. Bar Rule 4-1.1, and impose upon Plaintiffs’ counsel a duty to explain to their
client “a matter to the extent reasonably necessary to permit the client to make informed

decisions regarding the representation, see Fla. Bar Rule 4-1.4(b). The rules also require
22

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Plaintiffs’ counsel to “inform themselves about the facts of their clients’ case[].” See Comment
to Fla. Bar Rule 4-3.1. It is difficult to fathom how Plaintiffs’ counsel could have admitted fault
on behalf of their client without ensuring that their client indeed admitted fault. Yet Plaintiffs
now offer Mr. Gates’ own testimony, in which he reversed his former position, stating that “I
don’t take no responsibility for smoking something that almost killed me because I was so young
I couldn’t understand what I was doing at the time.” Pls.’ Mot. at 22. Notwithstanding Mr.
Gates’ change of opinion, this Court should hold Plaintiffs to their prior admission against
interest and should not allow them to repudiate such statements merely to gain a tactical
advantage.

The history of a similar request in the recent Caprio case demonstrates why allowing
Plaintiffs to arbitrarily reverse their positions can be so problematic. There, after withdrawing
the plaintiff's admission of fault to avoid a summary judgment motion, plaintiff's counsel in that
case (which is the same counsel here) nevertheless asked the jury to apportion fault to the smoker
in closing arguments. See Feb. 19, 2015 Trial Tr. at 5248-52, In re Engle progeny Cases
Tobacco Litig. (Caprio), No. 07-036719(5) (Fla. 17th Cir. Ct.) (Ex. 17). When discussing the
allocation of fault, the plaintiffs counsel conceded that the smoker “should have known better,”
and urged the jury to assign five percent of the fault to the smoker. Jd. This sudden reversal of
position—for the second time in the same case—was patently unfair to the defense.

The law does not authorize, and it should not tolerate, litigants manipulating their
admissions as a matter of expediency. Plaintiffs cannot use an admission of Mr. Gates’ fault as
both a shield and a sword. Defendants are entitled to rely on Plaintiffs’ admission of fault, or at

least know once and for all whether or not Plaintiff is admitting fault. As documented in Caprio,

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withdrawing the admission of fault to avoid summary judgment has not deterred Plaintiffs’

counsel from resurrecting it to their advantage in closing argument.

CONCLUSION

For the reasons set forth above, the Court should deny Plaintiffs’ Motion for Leave to

Amend Complaint in its entirety.

978530

Respectfully submitted,

/s/ Megan M. Egli
TIMOTHY E. CONGROVE

Fla. Bar No.: 65883
SHBPMAtyBroward@shb.com
tcongrove@shb.com

MEGAN M. EGLI

Fla. Bar. No.: 93209
SHBPMAttyBroward@shb.com

megli@shb.com

SHOOK, HARDY & BACON L.LP.

2555 Grand Blvd.

Kansas City, Missouri 64108-2613

Telephone: (816) 474-6550

Facsimile: (816) 421-5547

Counsel for Philip Morris USA Inc. (and filing
on behalf of R.J. Reynolds Tebacco Company
and Lorillard Tobacco Company for purposes of
this motion only)CASE NO. 08-CV-025811 (19)

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was served by E-
mail and through the Florida Court’s E-Filing Portal on all counsel listed below this 4th day of

January, 2016.

   
 
  

Attorney for Plaintiff. Attorney for R.J. Reynolds Tobacco
Jonathan Gdanski, Esq. Company., as successor-by-merger to
Brittany Chambers, Esq. Lorillard Tobacco Company
SCHLESINGER LAW OFFICES, P.A. Nathan A. Guest, Esq.
1212 Southeast Third Avenue Austin A. Evans, Esq.
Fort Lauderdale, FL 33316 KING & SPALDING L.L.P.
bchambers@sct 1180 Peachtree Street NE

Atlanta, GA 30309

jonat
SLOPA. service@schlesingerlawoffice aevans@kslaw.com
mdoss@schlesingerlaw.com KSTobacco@kslaw.com

nguest@kslaw.com

 

Attorney for Defendant Lorillard Tobacco Cory Hohnbaum, Esq.

 

 

Company: KING & SPALDING L.L.P.
Sabrina Ferris, Esq. 100 N. Tryon Street, Suite 3900
GREENBERG TRAURIG, P.A. Charlotte, NC 28202

401 East Las Olas Boulevard chohnbaum@kslaw.com

Suite 2000 emontuoro@kslaw.com

Fort Lauderdale, FL 33301 KSTobacco@kslaw.com

ferris@gtlaw.com

   

Eric L. Lundt, Esq.
SEDGWICK, LLP

2400 East Commercial Blvd. Suite 1100
Attorney for Defendant Liggett Group LLC Fort Lauderdale, FL 33308

and Defendant Vector Group Ltd.: Eric.lundt@sedgwicklaw.com
Kelly Anne Luther, Esq. david.s icklaw.com
KASOWITZ BENSON TORRES &

FRIEDMAN, LLP

1441 Brickell Avenue

Suite 1420

Miami, FL 33131

kluther@kasowitz.com

mruizAkasowitz.com

gmansecu