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SUFFOLK, ss
JONATHAN MAIN, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
RICHARD MAIN,
Plaintiff,
v.
RJ. REYNOLDS TOBACCO COMPANY,
Individually and as Successor by Merger to
Lorillard Tobacco Company,
PHILIP MORRIS USA, INC.,
GARBER BROS., INC.,
CUMBERLAND FARMS, INC., and
CUMBERLAND FARMS OF
MASSACHUSETTS, INC.
Defendants.
SS SS SS SH SE HS SH SE HS SS
COMMONWEALTH OF MASSACHUSETTS Bo d
TRIAL COURT DEPARTMENT
SUPERIOR COURT
DOCKET NO. 1684-CV-03883
SSO ZZ 100 Gli2)
DEFENDANTS’ MOTION TO BIFURCATE TRIAL TO SEPARATE THE
DETERMINATION OF AMOUNT OF PUNITIVE DAMAGES, IF ANY, FROM ALL
OTHER ISSUES
Defendants Philip Morris USA Inc. and R.J. Reynolds Tobacco Company, individually and
as successor by merger to Lorillard Tobacco Company (collectively “Defendants”), respectfully
move the Court for entry of an order bifurcating the trial to ensure that evidence relevant only to
the jury’s determination of the amount of punitive damages that should be awarded, if any, is not
introduced while the jury is deciding issues such as liability, comparative fault, and the amount of
any compensatory damages. Accordingly, Defendants request bifurcation of the trial as follows:Phase I. The jury will determine issues such as whether either Defendant is liable to
Plaintiff, the allocation of comparative fault, and the amount of compensatory damages.
The jury will also determine whether Plaintiff is entitled to punitive damages.
Phase II. If the jury determines that Plaintiff is entitled to punitive damages, then the jury
will determine the amount of punitive damages to award, if any.!
ARGUMENT
Rule 42(b) of the Massachusetts Rules of Civil Procedure authorizes this Court to order a
separate trial “in furtherance of convenience or to avoid prejudice, or when separate trials will be
conducive to expedition and economy.” Mass. R. Civ. P. 42(b)(2); Carlesi v. P&G Bowling Corp.,
No. CA9300210, 1995 WL 808928, at *1 (Mass. Super. Jan. 10, 1995). A decision to bifurcate
proceedings is within the sound discretion of the trial court. See, eg., Roddy & McNulty Ins.
Agency, Inc. v. A.A. Proctor & Co., Inc., 16 Mass. App. Ct. 525, 529 (1983) rev. denied 390 Mass.
1103 (1983); see also Cambridge Trust Co. v. Commercial Union Ins. Co., 32 Mass. App. Ct. 561,
565 (1992) (“Trial judges have discretion to separate parties, claims, and issues in order to avoid
prejudice or in the interest of expedition and economy.”). Factors to be considered include (i) the
potential prejudice to the parties, (ii) the potential confusion of the jury, and (iii) the relative
convenience and economy that would result from bifurcating a proceeding. See Cambridge Trust,
32 Mass. App. Ct. at 565; see also Roddy, 16 Mass. App. Ct. at 528. Only one of these criteria need
be met to justify bifurcation. See Chapman v. Bernard's, Inc., 167 F. Supp. 2d 406, 417 (D. Mass.
2001) (bifurcating product identification phase from damages in interest of judicial economy).
Here, all three criteria support bifurcation.
" During the parties’ September 11, 2019 meet and confer, counsel! for PM USA advised Plaintiff's
counsel of its intent to request bifurcation, at which time Plaintiff's counsel advised that they
oppose bifurcation. The parties’ Stipulated Case Management Order does not set a deadline for
filing bifurcation motions. Out of an abundance of caution, Defendants are filing this motion well
in advance of the deadline for motions in limine.
-2-Recognizing the potential problems of a unitary trial, Judge Buckley recently granted a
similar motion to bifurcate a tobacco trial, explaining: “I will bifurcate this case. I’m not going to
try punitives with this. It’s just too much right away for this jury to wrap their heads around.”
Hi’g Tr. at 82-83, Lagadimas v. R.J. Reynolds Tobacco Co., No. 1582-CV-01474 (Mass. Super.
Ct. Feb. 11, 2019) (Ex. A). And in three other recent smoking-and-health cases tried in the
Commonwealth, including one before this Court, the parties agreed to the same bifurcation sought
in this motion.” The Court should likewise bifurcate this trial for at least three reasons.
First, there is an unavoidable risk of prejudice to Defendants from a unitary trial. It cannot
be debated that evidence of Defendants’ net worth has no relevance to the Phase I compensatory
liability issues.> See, ¢.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003)
(quoting Honda Motor Co, v. Oberg, 512 U S. 415, 432 (1994) (“[TThe presentation of evidence
of a defendant’s net worth creates the potential that juries will use their verdicts to express biases
against big businesses, particularly those without strong local presences.”). Allowing Plaintiff to
present evidence of each Defendant’s respective net worth (each of which is billions of dollars) during
the trial of compensatory liability and compensatory damages would seriously and unfairly prejudice
Defendants. Specifically, there is an unacceptable risk that the jury will use evidence of billions in
net worth as a basis for imposing liability or to increase the amount of any compensatory damages
award through rationalizing that Defendants are capable of paying millions. This would be entirely
2 See Hr’g Tr. at 110, Coyne v. RJ. Reynolds Tobacco Co., No. 1681CV00266 (Mass. Sup. Ct.
Apr. 30, 2019); Hr’g Tr. at 52, Warshafsky v. Lorillard Tobacco Co., No. 168CV02691 (Mass.
Sup. Ct, Jan. 7, 2019); Trial Tr. at 3421, Summerlin v. Philip Morris USA Inc., No. 15-5255
(Mass. Sup. Ct. Sept. 26, 2018) (collectively, Ex. B).
3 As explained in Defendants’ forthcoming Motion Jn Limine To Exclude or Limit Evidence of Its
Financial Resources, Defendants contend that all evidence of their respective financial resources
is inadmissible in any phase of trial because it is willing to stipulate to its ability to pay an
otherwise-constitutional punitive damages award.
-3-improper and would violate Defendants’ due process rights. Indeed, as one court recognized, a
“charge on punitive damages during the primary trial could have prejudiced the [defendant] severely,
tempting the jury to award excessive compensatory damages against a defendant with deep pockets.”
Carter-Herman v. City of Philadelphia, No. CIV. A. 95-4030, 1996 WL 745227, at *6 (E.D. Pa.
Dec. 23, 1996). The United States Supreme Court has likewise recognized, on multiple occasions,
the risk of prejudice that such evidence poses. See, e.g., Campbell, 538 U.S. at 417; Oberg, 512
USS. at 432.4
Second, the trial of Plaintiff's liability theories will necessitate the testimony of several fact
witnesses and experts addressing events that occurred decades ago. Digesting all of this evidence will
require keen focus and attention by the jury, which weighs in favor of bifurcation. Cf, Soave v. Purity
Supreme, Inc., No. CA981173, 2000 WL 1273842, * 1 (Mass. Super. May 24, 2000) (“T]he damages
aspect of this case is complicated and would require in any event a significant amount of trial time to
present. In those circumstances, it is appropriate to bifurcate the liability and damages aspects of this
case.”). Bifurcation will help eliminate the juror confusion that is sure to result if Plaintiff is allowed
to commingle evidence relating to liability with evidence that is absolutely irrelevant to such
issues, which is exactly what Judge Buckley recently concluded.
Third, bifurcation will foster judicial economy. It will shorten and streamline the first
phase of the trial. And if the jury finds for Defendants on the issue of liability or concludes that
Plaintiff is not entitled to recover punitive damages, then there will be no need for a second phase
* Due process compels a trial court to take action to protect against even the risk that the jury could
go beyond the constitutional limitations set forth in Philip Morris USA v. Williams, 549 U.S.
346, 353 (2007), and Campbell. Where trial courts have not taken such actions, appellate courts
have reversed any resulting punitive damage award. See, e.g., White v. Ford Motor Co., 500
F.3d 963, 972 (9th Cir. 2007); Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1016 (9th
Cir. 2007); Bullock v. Philip Morris USA Inc., 71 Cal. Rptr. 3d 775, 805-06 (Cal. Ct. App. 2008).
-4-go
of trial —which is precisely what happened in Warshafsky v. Lorillard Tobacco Co. See also
Soave, 2000 WL 1273842 at *1; Colon v. BIC USA Inc., 199 F. Supp. 2d 53, 108 (S.D.N.Y. 2001)
(bifurcation appropriate if decision on one issue may obviate need to try second issue). Thus, the
Court may save itself, the jury, the witnesses, the attorneys, and the parties a great deal of time and
expense through bifurcation of an issue that will only need to be tried if Plaintiff prevails on certain
issues in the initial phase of trial. Moreover, in Coyne, after the jury found entitlement to punitive
damages in Phase I, Phase I was conducted over the course of two partial court-days.> That
experience is consistent with numerous Phase II proceedings in Florida over the past 5 years, which
typically last less than one full day.
CONCLUSION
For the foregoing reasons, Defendants respectfully submit that the jury’s determination of
the amount punitive damages, if any, be bifurcated from all other issues.
> The first day of Phase IT in Coyne began at approximately 2:15 pm and ended at approximately
3:57 pm on May 30, 2019. The second day of Phase II began on the morning of May 31, 2019,
and a verdict was returned and the trial was completed by 2:48 pm.
-5-%
Respectfully submitted,
Counsel for PHILIP MORRIS USA, INC.
WAIN A
William J. Trach (BBO# 661401)
Alexander P. Rothschild (BBO# 704521)
LATHAM & WATKINS LLP
John Hancock Tower, 27th Floor
200 Clarendon Street
Boston, MA 02116
Telephone: (617) 948-6000
Facsimile: (617)-449-6999
william.trach@lw.com
samuel.townsend@Iw.com
October 4, 2019
Counsel for R.J. REYNOLDS TOBACCO
COMPANY, Individually and as Successor by
Merger to Lorillard Tobacco Company,
bows. Coaleff 1008
Christopher M. Morrison, BBO #651335
Laura Diss Gradel, BBO #692315
Christopher J. Markham, BBO #685591
JONES DAY
100 High Street
Boston, MA 02110
Phone: (617) 449-6895
Facsimile: (617) 449-6999
cmorrison @jonesday.com
igradel @jonesday.com
cmarkham@jonesday.com
Jesika W. French (admitted pro hac vice)
JONES DAY
1420 Peachtree Street N.E. Suite 800
Atlanta, Georgia 30309
Telephone: (404) 581-8970 Sek
jwfrench@jonesday.com
Zole:
Bees
CERTIFICATE OF SERVICE
Thereby certify that on October 4, 2019, a true and accurate copy of the above document
was served by electronic mail upon all counsel of record.
Alexander P. Rothschild
Preview
SUFFOLK, ss JONATHAN MAIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RICHARD MAIN, Plaintiff, v. RJ. REYNOLDS TOBACCO COMPANY, Individually and as Successor by Merger to Lorillard Tobacco Company, PHILIP MORRIS USA, INC., GARBER BROS., INC., CUMBERLAND FARMS, INC., and CUMBERLAND FARMS OF MASSACHUSETTS, INC. Defendants. SS SS SS SH SE HS SH SE HS SS COMMONWEALTH OF MASSACHUSETTS Bo d TRIAL COURT DEPARTMENT SUPERIOR COURT DOCKET NO. 1684-CV-03883 SSO ZZ 100 Gli2) DEFENDANTS’ MOTION TO BIFURCATE TRIAL TO SEPARATE THE DETERMINATION OF AMOUNT OF PUNITIVE DAMAGES, IF ANY, FROM ALL OTHER ISSUES Defendants Philip Morris USA Inc. and R.J. Reynolds Tobacco Company, individually and as successor by merger to Lorillard Tobacco Company (collectively “Defendants”), respectfully move the Court for entry of an order bifurcating the trial to ensure that evidence relevant only to the jury’s determination of the amount of punitive damages that should be awarded, if any, is not introduced while the jury is deciding issues such as liability, comparative fault, and the amount of any compensatory damages. Accordingly, Defendants request bifurcation of the trial as follows:Phase I. The jury will determine issues such as whether either Defendant is liable to Plaintiff, the allocation of comparative fault, and the amount of compensatory damages. The jury will also determine whether Plaintiff is entitled to punitive damages. Phase II. If the jury determines that Plaintiff is entitled to punitive damages, then the jury will determine the amount of punitive damages to award, if any.! ARGUMENT Rule 42(b) of the Massachusetts Rules of Civil Procedure authorizes this Court to order a separate trial “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” Mass. R. Civ. P. 42(b)(2); Carlesi v. P&G Bowling Corp., No. CA9300210, 1995 WL 808928, at *1 (Mass. Super. Jan. 10, 1995). A decision to bifurcate proceedings is within the sound discretion of the trial court. See, eg., Roddy & McNulty Ins. Agency, Inc. v. A.A. Proctor & Co., Inc., 16 Mass. App. Ct. 525, 529 (1983) rev. denied 390 Mass. 1103 (1983); see also Cambridge Trust Co. v. Commercial Union Ins. Co., 32 Mass. App. Ct. 561, 565 (1992) (“Trial judges have discretion to separate parties, claims, and issues in order to avoid prejudice or in the interest of expedition and economy.”). Factors to be considered include (i) the potential prejudice to the parties, (ii) the potential confusion of the jury, and (iii) the relative convenience and economy that would result from bifurcating a proceeding. See Cambridge Trust, 32 Mass. App. Ct. at 565; see also Roddy, 16 Mass. App. Ct. at 528. Only one of these criteria need be met to justify bifurcation. See Chapman v. Bernard's, Inc., 167 F. Supp. 2d 406, 417 (D. Mass. 2001) (bifurcating product identification phase from damages in interest of judicial economy). Here, all three criteria support bifurcation. " During the parties’ September 11, 2019 meet and confer, counsel! for PM USA advised Plaintiff's counsel of its intent to request bifurcation, at which time Plaintiff's counsel advised that they oppose bifurcation. The parties’ Stipulated Case Management Order does not set a deadline for filing bifurcation motions. Out of an abundance of caution, Defendants are filing this motion well in advance of the deadline for motions in limine. -2-Recognizing the potential problems of a unitary trial, Judge Buckley recently granted a similar motion to bifurcate a tobacco trial, explaining: “I will bifurcate this case. I’m not going to try punitives with this. It’s just too much right away for this jury to wrap their heads around.” Hi’g Tr. at 82-83, Lagadimas v. R.J. Reynolds Tobacco Co., No. 1582-CV-01474 (Mass. Super. Ct. Feb. 11, 2019) (Ex. A). And in three other recent smoking-and-health cases tried in the Commonwealth, including one before this Court, the parties agreed to the same bifurcation sought in this motion.” The Court should likewise bifurcate this trial for at least three reasons. First, there is an unavoidable risk of prejudice to Defendants from a unitary trial. It cannot be debated that evidence of Defendants’ net worth has no relevance to the Phase I compensatory liability issues.> See, ¢.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003) (quoting Honda Motor Co, v. Oberg, 512 U S. 415, 432 (1994) (“[TThe presentation of evidence of a defendant’s net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences.”). Allowing Plaintiff to present evidence of each Defendant’s respective net worth (each of which is billions of dollars) during the trial of compensatory liability and compensatory damages would seriously and unfairly prejudice Defendants. Specifically, there is an unacceptable risk that the jury will use evidence of billions in net worth as a basis for imposing liability or to increase the amount of any compensatory damages award through rationalizing that Defendants are capable of paying millions. This would be entirely 2 See Hr’g Tr. at 110, Coyne v. RJ. Reynolds Tobacco Co., No. 1681CV00266 (Mass. Sup. Ct. Apr. 30, 2019); Hr’g Tr. at 52, Warshafsky v. Lorillard Tobacco Co., No. 168CV02691 (Mass. Sup. Ct, Jan. 7, 2019); Trial Tr. at 3421, Summerlin v. Philip Morris USA Inc., No. 15-5255 (Mass. Sup. Ct. Sept. 26, 2018) (collectively, Ex. B). 3 As explained in Defendants’ forthcoming Motion Jn Limine To Exclude or Limit Evidence of Its Financial Resources, Defendants contend that all evidence of their respective financial resources is inadmissible in any phase of trial because it is willing to stipulate to its ability to pay an otherwise-constitutional punitive damages award. -3-improper and would violate Defendants’ due process rights. Indeed, as one court recognized, a “charge on punitive damages during the primary trial could have prejudiced the [defendant] severely, tempting the jury to award excessive compensatory damages against a defendant with deep pockets.” Carter-Herman v. City of Philadelphia, No. CIV. A. 95-4030, 1996 WL 745227, at *6 (E.D. Pa. Dec. 23, 1996). The United States Supreme Court has likewise recognized, on multiple occasions, the risk of prejudice that such evidence poses. See, e.g., Campbell, 538 U.S. at 417; Oberg, 512 USS. at 432.4 Second, the trial of Plaintiff's liability theories will necessitate the testimony of several fact witnesses and experts addressing events that occurred decades ago. Digesting all of this evidence will require keen focus and attention by the jury, which weighs in favor of bifurcation. Cf, Soave v. Purity Supreme, Inc., No. CA981173, 2000 WL 1273842, * 1 (Mass. Super. May 24, 2000) (“T]he damages aspect of this case is complicated and would require in any event a significant amount of trial time to present. In those circumstances, it is appropriate to bifurcate the liability and damages aspects of this case.”). Bifurcation will help eliminate the juror confusion that is sure to result if Plaintiff is allowed to commingle evidence relating to liability with evidence that is absolutely irrelevant to such issues, which is exactly what Judge Buckley recently concluded. Third, bifurcation will foster judicial economy. It will shorten and streamline the first phase of the trial. And if the jury finds for Defendants on the issue of liability or concludes that Plaintiff is not entitled to recover punitive damages, then there will be no need for a second phase * Due process compels a trial court to take action to protect against even the risk that the jury could go beyond the constitutional limitations set forth in Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007), and Campbell. Where trial courts have not taken such actions, appellate courts have reversed any resulting punitive damage award. See, e.g., White v. Ford Motor Co., 500 F.3d 963, 972 (9th Cir. 2007); Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1016 (9th Cir. 2007); Bullock v. Philip Morris USA Inc., 71 Cal. Rptr. 3d 775, 805-06 (Cal. Ct. App. 2008). -4-go of trial —which is precisely what happened in Warshafsky v. Lorillard Tobacco Co. See also Soave, 2000 WL 1273842 at *1; Colon v. BIC USA Inc., 199 F. Supp. 2d 53, 108 (S.D.N.Y. 2001) (bifurcation appropriate if decision on one issue may obviate need to try second issue). Thus, the Court may save itself, the jury, the witnesses, the attorneys, and the parties a great deal of time and expense through bifurcation of an issue that will only need to be tried if Plaintiff prevails on certain issues in the initial phase of trial. Moreover, in Coyne, after the jury found entitlement to punitive damages in Phase I, Phase I was conducted over the course of two partial court-days.> That experience is consistent with numerous Phase II proceedings in Florida over the past 5 years, which typically last less than one full day. CONCLUSION For the foregoing reasons, Defendants respectfully submit that the jury’s determination of the amount punitive damages, if any, be bifurcated from all other issues. > The first day of Phase IT in Coyne began at approximately 2:15 pm and ended at approximately 3:57 pm on May 30, 2019. The second day of Phase II began on the morning of May 31, 2019, and a verdict was returned and the trial was completed by 2:48 pm. -5-% Respectfully submitted, Counsel for PHILIP MORRIS USA, INC. WAIN A William J. Trach (BBO# 661401) Alexander P. Rothschild (BBO# 704521) LATHAM & WATKINS LLP John Hancock Tower, 27th Floor 200 Clarendon Street Boston, MA 02116 Telephone: (617) 948-6000 Facsimile: (617)-449-6999 william.trach@lw.com samuel.townsend@Iw.com October 4, 2019 Counsel for R.J. REYNOLDS TOBACCO COMPANY, Individually and as Successor by Merger to Lorillard Tobacco Company, bows. Coaleff 1008 Christopher M. Morrison, BBO #651335 Laura Diss Gradel, BBO #692315 Christopher J. Markham, BBO #685591 JONES DAY 100 High Street Boston, MA 02110 Phone: (617) 449-6895 Facsimile: (617) 449-6999 cmorrison @jonesday.com igradel @jonesday.com cmarkham@jonesday.com Jesika W. French (admitted pro hac vice) JONES DAY 1420 Peachtree Street N.E. Suite 800 Atlanta, Georgia 30309 Telephone: (404) 581-8970 Sek jwfrench@jonesday.com Zole: Bees CERTIFICATE OF SERVICE Thereby certify that on October 4, 2019, a true and accurate copy of the above document was served by electronic mail upon all counsel of record. Alexander P. Rothschild