throbber
Filing # 112529241 E-Filed 08/28/2020 09:13:53 AM
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`
`IN THE DISTRICT COURT OF APPEAL
`FOURTH DISTRICT OF FLORIDA
`
`CASE No. 4D18-1730
`
`L.T. No. CASE NO. 2008-CV-025807 (19)
`
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`R.J. Reynolds Tobacco Company, et al.,
`
`
`Defendants/Petitioners,
`
`
`v.
`
`James Santoro, as Personal Representative
`Of the Estate of Grace Santoro,
`
`
`Plaintiff/Respondent.
`_______________________________/
`
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`NOTICE TO INVOKE DISCRETIONARY JURISDICTION
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`NOTICE IS GIVEN that R.J. Reynolds Tobacco Company, Liggett Group
`
`LLC, and Philip Morris USA Inc., Defendants/Petitioners, invoke the discretionary
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`jurisdiction of the supreme court to review the decision of this court rendered on
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`July 29, 2020. The decision expressly and directly conflicts with decisions of
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`another district court of appeal or of the supreme court on the same question of
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`law.
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`
`
`Respectfully submitted,
`
`/s/ Val Leppert
`Val Leppert
`Florida Bar No. 97996
`KING & SPALDING LLP
`1180 Peachtree St., NE
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`
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`RECEIVED, 08/28/2020 09:14:33 AM, Clerk, Fourth District Court of Appeal
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`RECEIVED, 08/28/2020 10:12:29 AM, Clerk, Supreme Court
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`Atlanta, GA 30309
`Telephone: (404) 572-4600
`Facsimile: (404) 572-5100
`vleppert@kslaw.com
`KSTobacco@kslaw.com
`
`Attorney for Defendant/Appellant R.J.
`REYNOLDS TOBACCO COMPANY
`(filing on behalf of Defendants/Petitioners
`Philip Morris USA Inc. and Liggett
`Group LLC for purposes of this filing
`only)
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`2
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`CERTIFICATE OF SERVICE
`I HEREBY CERTIFY that a true and correct copy of the foregoing was e-
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`filed in this Court and served by electronic mail to all counsel listed below this
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`28th day of August, 2020.
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`Counsel of Plaintiff:
`
`
`Austin Carr, Esq.
`Justin Parafinczuk, Esq.
`PARAFINCZUK WOLF SUSEN
`110 East Broward Boulevard
`Suite 1630
`Fort Lauderdale, FL 33301
`Pleadings @PWSLawFirm.com
`ACarr@ PWSLawFirm.com
`JParafinczuk@PWSLawFirm.com
`Susen@PWSLawFirm.com
`MRodriguez@PWSLawFinn.com
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`
`
`Bard D. Rockenbach, Esq.
`Jeffrey V. Mansell, Esq.
`BURLINGTON & ROCKENBACH,
`P.A.
`Courthouse Commons/Suite 350
`444 West Railroad Avenue
`West Palm Beach, FL 33401
`bdr@FLAppellateLaw.com
`jvm@FLAppellateLaw.com
`fa@FLAppellateLaw.com
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`
`
`
`Counsel for R.J. Reynolds Tobacco
`Co., individually and as successor-by
`merger to Lorillard Tobacco Co.:
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`William L. Durham II, Esq.
`Val Leppert, Esq.
`Philip R. Green, Esq.
`Jason E. Keehfus, Esq.
`KING & SPALDING LLP
`1180 Peachtree Street, N.E.
`Atlanta, GA 30309
`wdurham@kslaw.com
`vleppert@kslaw.com
`pgreen@kslaw.com
`jkeehfus@kslaw.com
`rmcmanus@kslaw.com
`KSTobacco@kslaw.com
`
`
`
`Cory Hohnbaum, Esq.
`KING & SPALDING LLP
`100 North Tryon Street, Suite 3900
`Charlotte, NC 28202
`chohnbaum@kslaw.com
`KSTobacco@kslaw.com
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`3
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`Counsel for Liggett Group LLC:
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`Kelly Anne Luther, Esq.
`KASOWITZ BENSON TORRES
`LLP
`1441 Brickell Avenue, Suite 1420
`Miami, FL 33131
`kluther@kasowitz.com
`mruiz@kasowitz.com
`
`Karen H. Curtis, Esq.
`CLARKE SILVERGLATE, P.A.
`799 Brickell Plaza, Suite 900
`Miami, FL 33131
`kcurtis@cspalaw.com
`aford@cspalaw.com
`socd@cspalaw.com
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`Co-Counsel for Philip Morris USA
`Inc.:
`Peter M. Henk, Esq.
`SHOOK, HARDY & BACON, L.L.P.
`JP Morgan Chase Tower
`600 Travis St., Suite 1600
`Houston, TX 77002-2992
`phenk@shb.com
`
`
`Joseph M. Fasi, II, Esq.
`GASS WEBER MULLINS LLC
`255 Aragon Avenue, Second Floor
`Miami, FL 33134
`fasi@gwmlaw.com
`wiza@gwmlaw.com
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`David F. Northrip
`Maria Salcedo
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Blvd.
`Kansas City, MO 64108
`dnorthrip@shb.corn
`msalcedo@shb.com
`Geoffrey J. Michael
`Florida Bar No. 86152
`ARNOLD & PORTER KAYE
`SCHOLER LLP
`601 Massachusetts Avenue, NW
`Washington, DC 20001
`Geoffrey.Michael@arnoldporter.com
`
`/s/ Val Leppert
`Attorney for Appellant R.J.
`Reynolds Tobacco Company
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`4
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`DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
`FOURTH DISTRICT
`
`PHILIP MORRIS USA INC., R.J. REYNOLDS TOBACCO COMPANY,
`and LIGGETT GROUP LLC,
`Appellants,
`
`v.
`
`JAMES SANTORO, as successor as Personal Representative of the
`ESTATE OF GRACE SANTORO,
`Appellee.
`
`No. 4D18-1730
`
`[May 6, 2020]
`
`Appeal and cross-appeal from the Circuit Court for the Seventeenth
`Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case
`Nos. 08-80000 (19), 2008-CV-025807 (19).
`
`David F. Northrip, Maria Salcedo, and Laura K. Whitmore of Shook,
`Hardy & Bacon L.L.P., Kansas City, MO, and Geoffrey J. Michael of Arnold
`& Porter Kaye Scholer LLP, Washington, DC, for appellant Philip Morris
`USA Inc.
`
`William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta,
`GA, for appellant R.J. Reynolds Tobacco Company.
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`Kelly Anne Luther of Kasowitz Benson Torres LLP, Miami, for appellant
`Liggett Group LLC.
`
`Justin Parafinczuk and Austin Carr of Koch Parafinczuk Wolf Susen,
`Fort Lauderdale, and Bard D. Rockenbach and Jeffrey V. Mansell of
`Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
`
`WARNER, J.
`
` Philip Morris USA Inc., R.J. Reynolds Tobacco Company, and Liggett
`Group LLC (Tobacco Defendants) appeal a final judgment for damages
`entered in favor of James Santoro, as Successor Personal Representative
`of the Estate of Mrs. Grace Santoro (the Estate). Tobacco Defendants
`contend that the court erred in denying their motion for directed verdict
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`

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`on the ground that the decedent was a member of the Engle class,1 thus
`precluding this cause of action. The Estate cross-appeals the final
`judgment, contending that the court erred in setting aside the jury verdict
`on its strict liability and negligence claims, as well as the award of punitive
`damages, based upon the Estate’s failure to prove causation as to each
`individual defendant. We affirm the denial of the directed verdict as to
`class membership, but we reverse the order granting defendants’ motion
`for directed verdict, concluding that sufficient evidence was presented for
`the jury to find as it did on both issues.2
`
` The Estate filed this Engle progeny suit in 2007 against the Tobacco
`Defendants for Grace Santoro’s wrongful death in 1998 from lung cancer.
`Grace had been a lifetime smoker. The Estate alleged claims for strict
`liability, negligence, fraudulent concealment, and conspiracy to commit
`fraud by concealment.
` Tobacco Defendants contested Grace’s
`membership in the Engle class, as well as their individual causation of her
`death.
`
` At trial, to prove Engle class membership, the Estate presented
`testimony from an expert pulmonologist and Mr. Santoro, Grace’s
`husband. The expert pulmonologist, Dr. Allan Feingold, testified that Mrs.
`Santoro was first diagnosed with cancer on July 7, 1997. A CT scan on
`that date revealed a 7.1 centimeter mass in the upper right lobe of Mrs.
`Santoro’s lung. A biopsy showed the tumor was advanced, stage III, non-
`small cell lung cancer. Dr. Feingold testified that because he knew the
`cancer cell type and the rate at which that cell type grows, he could
`determine how long Mrs. Santoro’s tumor had been growing in her chest.
`Using his expertise, he calculated that by the end of September 1996, the
`diameter of the tumor would have been at least 4.41 centimeters. In May
`1996, it would have been 3.5 centimeters, the size of a walnut, and would
`have been easily detectible on an X-ray, had one been taken.
`
`
`Dr. Feingold testified that such a tumor could cause hemoptysis,
`coughing up of blood from the lung. Mrs. Santoro’s husband testified that
`she had coughed up blood on a trip they took to Las Vegas in the summer
`
` 1
`
` Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
`2 In one issue on appeal, Tobacco Defendants argue that the Estate’s claims are
`preempted or that use of the Engle findings violates their due process rights.
`They acknowledge, however, that their claims have already been rejected by the
`Florida Supreme Court. See R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d
`590, 605 (Fla. 2017); Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 430-36
`(Fla. 2013). We do not address this further, because these issues have already
`been settled.
`
`
`
`2
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`of 1996. While the Tobacco Defendants attempted to impeach Mr. Santoro
`with his deposition testimony, he tied the trip to his purchase of a car for
`them with the couple’s winnings from that trip, and records showed that
`he had indeed purchased a vehicle that summer. Mrs. Santoro’s medical
`records indicated that she reported incidents of hemoptysis in the spring
`and summer of 1997, after which she was diagnosed with lung cancer.
`
`At the close of the Estate’s case, Tobacco Defendants moved for a
`directed verdict on Engle class membership, arguing that the Estate had
`failed to prove that Mrs. Santoro’s lung cancer had manifested itself prior
`to the Engle class cutoff date of November 21, 1996. The court deferred
`ruling but ultimately denied the motion. Tobacco Defendants also moved
`for a directed verdict claiming that the Estate had failed to prove the use
`of each individual Tobacco Defendant’s product was a legal cause of the
`lung cancer and death of Mrs. Santoro, the facts of which we will address
`later in this opinion. The trial court reserved ruling and expressed concern
`that there was no testimony as to each individual defendant’s liability.
`
`The case proceeded to the jury, and the jury found that Mrs. Santoro’s
`lung cancer manifested itself before the Engle class cutoff date, and thus
`she was a member of the Engle class. The jury determined that Mrs.
`Santoro’s smoking of each Tobacco Defendant’s cigarettes was a legal
`cause of her lung cancer and death. The jury found for the Estate on its
`strict liability, negligence, fraud, and conspiracy counts and apportioned
`liability as follows:
`
`
`Grace Santoro: 36%
`Philip Morris USA, Inc.: 28%
`R.J. Reynolds Tobacco Company: 26%
`Liggett Group LLC: 10%
`
`It awarded compensatory damages in the amount of $1,605,000, and also
`found that the Tobacco Defendants should be liable for punitive damages.
`The jury returned a Phase II verdict awarding the Estate $100,000 in
`punitive damages against Philip Morris, $90,000 from R.J. Reynolds, and
`$15,000 from Liggett. The trial court initially entered judgment in the
`Estate’s favor for both compensatory and punitive damages.
`
` Tobacco Defendants moved to set aside the verdict in accordance with
`their motion for directed verdict which claimed a lack of proof of causation
`from each defendant’s brands of cigarettes, as well as failure to prove Engle
`class membership. The court granted the motion as to the strict liability,
`negligence, and fraud claims but denied it as to the conspiracy count,
`based upon Rey v. Philip Morris, Inc., 75 So. 3d 378 (Fla. 3d DCA 2011),
`
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`3
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`which concluded that brand usage was irrelevant in a conspiracy claim.
`The trial court also denied Tobacco Defendants’ motion to set aside the
`Phase I and Phase II verdicts as to class membership.
`
` The trial court originally reduced the verdict to account for Mrs.
`Santoro’s comparative negligence. The Estate moved to amend the final
`judgment pursuant to Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d
`294 (Fla. 2017) to award the full amount of compensatory and punitive
`damages. The trial court granted the motion as to compensatory damages,
`but denied it with respect to punitive damages, since the Estate sought
`punitive damages only on the negligence and strict liability claims upon
`which the court had granted the directed verdict. The court then amended
`the final judgment to award the full amount of compensatory damages.
`From this judgment both sides appeal.
`
`
`Denial of Directed Verdict on Engle Class Membership
`
`
` Tobacco Defendants first contend that the court erred in denying their
`motion for directed verdict on Mrs. Santoro’s Engle class membership.
`They argue that the expert’s testimony of the retrograde analysis of the
`size of the tumor at the time of the Engle class membership cutoff date
`does not constitute the “manifestation” of her disease within the meaning
`of the case law. The Estate counters that the retrograde analysis of the
`tumor size in the spring of 1996, which could cause symptoms, together
`with the testimony of Mr. Santoro that his wife experienced hemoptysis
`prior to the cutoff date, was sufficient to prove class membership. We
`agree with the Estate.
`
` Review of a trial court’s denial of a motion for directed verdict is de
`novo, “while considering ‘the evidence and all inferences of fact in the light
`most favorable to the nonmoving party.’” Broward Exec. Builders, Inc. v.
`Zota, 192 So. 3d 534, 536 (Fla. 4th DCA 2016) (citation omitted). “A
`directed verdict ‘is not appropriate in cases where there is conflicting
`evidence as to the causation or the likelihood of causation.’” Friedrich v.
`Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013) (quoting Cox v.
`St. Josephs Hosp., 71 So. 3d 795, 801 (Fla. 2011)). “A directed verdict can
`be upheld only if there is no evidence or inference from the evidence
`which will support the non-moving party’s position. Moreover, a directed
`verdict in a negligence action should only be entered if the plaintiff could
`not recover under any reasonable view of the evidence.” Whitney v.
`R.J. Reynolds Tobacco Co., 157 So. 3d 309, 312 (Fla. 1st DCA 2014)
`(citation omitted) (emphasis included).
`
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`4
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` To rely on the findings of Engle v. Liggett Group, Inc., 945 So. 2d 1246,
`1274 (Fla. 2006), which established general causation that cigarette
`smoking causes cancer, the Estate was required to prove that Grace
`Santoro was a class member under Engle, whose members are described
`as those “who have suffered, presently suffer or who have died from
`diseases and medical conditions caused by their addiction to cigarettes
`that contain nicotine.” See R.J. Reynolds Tobacco Co. v. Ciccone, 190 So
`3d 1028, 1030 (Fla. 2016) (quoting R.J. Reynolds Tobacco Co. v. Engle, 672
`So. 2d 39, 40 (Fla. 3d DCA 1996)). The court established a cutoff date for
`Engle class membership of November 21, 1996. “The critical event is not
`when an illness was actually diagnosed by a physician, but when the
`disease or condition first manifested itself.” Engle, 945 So. 2d at 1276.
`Thus, the disease must manifest itself in the person before the cutoff date.
`
`In Ciccone, the supreme court addressed the certified question of
`
`“defining ‘manifestation’ of the plaintiff’s tobacco-related disease or
`medical condition for purposes of establishing membership in the Engle
`class.” 190 So. 3d at 1035. The Ciccone court held that “‘manifestation’
`for purposes of establishing membership in the Engle class is defined as
`the point at which the plaintiff began suffering from or experiencing
`symptoms of a tobacco-related disease or medical condition.” Id. at 1041.
`
` We conclude that the evidence was sufficient to submit to a jury for
`determination of whether Mrs. Santoro suffered symptoms from lung
`cancer prior to the cutoff date of Engle class membership. See, e.g.,
`Castillo v. E.I. Dupont De Nemours & Co., Inc., 854 So. 2d 1264, 1279 (Fla.
`2003). Her husband testified that she had an incident of coughing up
`blood, or hemoptysis, in the summer of 1996. The expert testified that her
`lung cancer tumor was of sufficient size then to cause hemoptysis, which
`is a symptom of lung cancer. He also opined that her lung cancer was
`caused by smoking. “The question of class membership is a fact issue
`viewed with the benefit of hindsight . . . where expert testimony may
`establish the link between a plaintiff’s concrete symptoms and tobacco.”
`Ciccone, 190 So. 3d at 1039. Dr. Feingold’s testimony provided a link
`between the husband’s testimony of the 1996 incident of hemoptysis, that
`it was a symptom of cancer, and her death from lung cancer caused by
`her cigarette smoking.
`
`
`Although Tobacco Defendants point to their impeachment of the
`husband’s testimony regarding the date he observed the hemoptysis, the
`jury was free to weigh the credibility of a witness and accept or reject
`testimony. See Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 2011). The
`weight to be given evidence is for the jury to decide. Whitney v. R.J.
`Reynolds Tobacco Co., 157 So. 3d 309, 314 (Fla. 1st DCA 2014). A
`
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`reviewing court may not reweigh the evidence or substitute its judgment
`concerning the credibility of a witness for that is the province of the jury.
`Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013). We
`therefore find no error in denying Tobacco Defendants’ motion for directed
`verdict on Engle class membership.
`
`Setting Aside Jury Verdict Based upon Failure to Prove Legal Cause
`as to Individual Defendants
`
`
` At issue on the cross-appeal is the trial court’s decision to set aside the
`jury’s verdict in favor of the Estate on its claims for negligence and strict
`liability in accordance with Tobacco’s motion for directed verdict. The
`court reasoned that without expert testimony to support individual legal
`causation, the verdict could not stand.
`
` The Estate agrees that the expert, Dr. Feingold, did not give specific
`opinion testimony on causation as to each Tobacco Defendant. It argues,
`however, that Dr. Feingold’s testimony, together with Mr. Santoro’s
`testimony, regarding the brands that Mrs. Santoro smoked and the periods
`of time that she smoked each Defendant’s cigarettes, was sufficient proof
`of causation for their negligence and strict liability claims. We agree.
`
`In Engle, the supreme court established certain findings which had a
`
`res judicata effect on all Engle progeny cases. Those included:
`
`
`i) “that smoking cigarettes causes” certain named diseases
`including COPD and lung cancer; (ii) “that nicotine in
`cigarettes is addictive;” (iii) “that the [Engle] defendants placed
`cigarettes on the market that were defective and unreasonably
`dangerous;” (iv) “that the [Engle] defendants concealed or
`omitted material information not otherwise known or available
`knowing that the material was false or misleading or failed to
`disclose a material fact concerning the health effects or
`addictive nature of smoking cigarettes or both;” (v) “that the
`[Engle] defendants agreed to conceal or omit information
`regarding the health effects of cigarettes or their addictive
`nature with the intention that smokers and the public would
`rely on this information to their detriment;” (vi) “that all of the
`[Engle] defendants sold or supplied cigarettes that were
`defective;” (vii) “that all of the [Engle] defendants sold or
`supplied cigarettes that, at the time of sale or supply, did not
`conform to representations of fact made by said defendants;”
`and (viii) “that all of the [Engle] defendants were negligent.”
`
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`. . .
`
` .
`
` . . Because these findings go to the defendants’ underlying
`conduct, which is common to all class members and will not
`change from case to case, we held that these approved “Phase
`I common core findings . . . will have res judicata effect” in
`class members’ “individual damages actions.”
`
`
`Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-28 (Fla. 2013)
`(footnote omitted) (quoting Engle, 945 So. 2d at 1276-77, 1269). These
`findings establish general causation, and individual causation must be
`established in subsequent lawsuits. The Douglas court explained:
`
`
`In other words, the Phase I common liability jury determined
`(the connection between the Engle
`general causation
`defendants’ addictive cigarettes and the diseases in question),
`which leaves specific or individual causation (the connection
`between the Engle defendants’ addictive cigarettes and the
`injury that an individual plaintiff actually sustained) to be
`determined on an individual basis. The Engle defendants
`may defend against the establishment of individual causation,
`for example, by proving that the disease at issue was the
`result of a genetic predisposition, exposure to an occupational
`hazard, or something unrelated to the plaintiff's addiction to
`smoking the Engle defendants’ cigarette.
`
`
`Id. at 428. In Douglas, the defendants claimed that the Engle findings were
`not sufficiently specific “to establish a causal link between their conduct
`and damages to individual plaintiffs who prove injuries caused by
`addiction to smoking the Engle defendants’ cigarettes.” Id. The court
`rejected this proposition and concluded that the Engle findings were
`sufficient to prove individual causation. “When an Engle class member
`makes this showing [of legal causation due to addiction to cigarettes],
`injury as a result of the Engle defendants’ conduct is assumed based on
`the Phase I common liability findings.” Id. at 429.
`
`
`In other words, to prevail on either strict liability or negligence
`Engle claims,
`individual plaintiffs must establish
`(i)
`membership in the Engle class; (ii) individual causation, i.e.,
`that addiction to smoking the Engle defendants’ cigarettes
`containing nicotine was a legal cause of the injuries alleged;
`and (iii) damages. See Engle, 945 So. 2d at 1254 (recognizing
`that Engle plaintiffs are required to prove “individual
`causation” in their damages actions); see also Martin, 53 So.
`
`
`
`7
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`3d at 1069 (holding that the plaintiff proved legal causation
`for her negligence and strict liability claims by producing
`“sufficient evidence for a jury to find that [the deceased’s]
`addiction to [the Engle defendant’s] cigarettes[, stipulated to
`contain nicotine,] was the legal cause of his death”).
`
`
`Id. at 430 (emphasis added).
`
` The Douglas court cited with approval to R.J. Reynolds Tobacco Co. v.
`Martin, 53 So. 3d 1060, 1069 (Fla. 1st DCA 2010), review denied, 67 So.
`3d 1050 (Fla. 2011), cert. denied, 566 U.S. 905 (2012). Martin is
`instructive on the issue of the proof necessary for individual causation.
`There, the decedent smoked R.J. Reynolds cigarettes his entire life and
`died of lung cancer. His widow brought suit for wrongful death. At trial,
`the parties stipulated that the cigarettes the decedent smoked contained
`nicotine, nicotine is addictive, and smoking causes lung cancer. The jury
`found that the cigarettes were a legal cause of his death and awarded
`substantial damages. The main issue on appeal was whether the plaintiff
`could rely on the Engle findings to prove individual causation. The court
`held that she could and determined that there was sufficient evidence to
`submit to the jury on the issue:
`
`
`At trial Mrs. Martin produced evidence showing that: Mr.
`Martin started smoking at age 14 and by age 23 was smoking
`two packs of non-filtered Lucky Strike cigarettes every day;
`. . . Mr. Martin was diagnosed by a physician as being
`addicted to nicotine; his treating pulmonologist determined
`his decades of smoking caused him to contract lung cancer
`which
`in turn caused his death.
` The record thus
`demonstrates Mrs. Martin was required to prove legal
`causation, and she produced sufficient evidence for a jury to
`find that Mr. Martin’s addiction to RJR’s cigarettes was the
`legal cause of his death.
`
`
`Id. at 1069. What we glean from Douglas and Martin is that individual
`causation can be proved by (1) the Engle findings that smoking cigarettes
`causes cancer and related diseases, and nicotine in cigarettes is addictive;
`(2) evidence that the decedent smoked the defendants’ cigarettes in
`sufficient quantities to become addicted; (3) that decedent was addicted to
`smoking cigarettes; and (4) smoking cigarettes caused her lung cancer and
`death.
`
` Tobacco Defendants argue that expert evidence was necessary to prove
`that each of their products was a substantial factor in causing Mrs.
`
`
`
`8
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`

`Santoro’s death from lung cancer, with which the trial court agreed. We
`conclude, however, that the Estate did prove this with a combination of
`expert testimony, lay testimony, and the Engle findings from which the
`jury could draw logical inferences.
`
` Through lay testimony, the jury learned that Mrs. Santoro was smoking
`from the time she was seventeen years old. She smoked multiple brands
`manufactured by Tobacco Defendants. She first smoked Chesterfields
`(Liggett) for four or five years. She also smoked Lucky Strikes (RJR) for
`four or five years; Marlboro (PM), for six or seven years; Philip Morris (PM)
`for at least five years; and Camel (RJR), Virginia Slims (PM), Viceroy (RJR),
`and Kool (RJR) for unspecified amounts of time. Mrs. Santoro’s medical
`records showed that she smoked “one and a quarter to two packs per day,
`which would be somewhat more than 20 cigarettes, maybe 25 cigarettes a
`day to 40 cigarettes a day.” Dr. Feingold testified that consistent ingestion
`of five milligrams of nicotine, which would be delivered by five cigarettes,
`was a threshold for addiction. “Almost everybody that smokes four times
`that threshold amount would be addicted,” and he opined that Mrs.
`Santoro was addicted based upon standard tests used to determine
`addiction. Mrs. Santoro’s nicotine intake, assuming that she smoked
`forty-nine years, would be “self-administered doses of nicotine” of more
`than “5 million doses.” If she smoked thirty-nine years, then it would be
`more than “4 million doses” of nicotine. “And either way, it is my opinion
`that the patient was addicted to nicotine while she smoked.” Dr. Feingold
`also testified that she died of metastatic lung cancer, which was caused
`by smoking cigarettes.
`
` Based on the foregoing proof, the jury could find that Mrs. Santoro
`smoked each Tobacco Defendant’s cigarettes in quantities and for a length
`of time which would cause addiction to those cigarettes. Expert testimony
`proved she was addicted to smoking. The Engle findings required the jury
`to find that the nicotine in each of the Tobacco Defendants’ cigarettes
`causes addiction, and smoking causes lung cancer. Expert testimony
`showed that her addiction led to her lung cancer which led to her death.
`In other words, the jury could determine that smoking each Tobacco
`Defendant’s cigarettes “directly and in natural and continuous sequence,”
`contributed substantially to producing her death. An expert was not
`required to opine expressly as to each Tobacco Defendant that their
`product was a substantial factor in causing the death of Mrs. Santoro. The
`evidence presented did not require the jury to make any inferences other
`than to tie the expert testimony to the lay testimony, as juries are
`frequently asked to do in trials. See, e.g., Castillo v. E.I. Dupont De
`Nemours & Co., Inc., 854 So. 2d 1264, 1279 (Fla. 2003). Thus, the court
`
`
`
`9
`
`

`

`erred in overturning the jury verdict as to the strict liability and negligence
`claims.
`
`
`Conclusion
`
`
` The court did not err in denying the Tobacco Defendants’ motion for
`directed verdict as to Engle class membership, but it did err in granting
`their motion for directed verdict as to the strict liability and negligence
`claims. We thus reverse and remand for reinstatement of the jury verdict
`on those claims, and for the entry of an amended final judgment which
`will include the jury’s award of punitive damages which were based upon
`the strict liability and negligence claims.
`
` Affirmed in part; Reversed in part; and remanded for further proceedings.
`
`FORST, J., and WALSH, LISA A., Associate Judge, concur.
`
`* * *
`
`Not final until disposition of timely filed motion for rehearing.
`
`
`
`10
`
`

`

`IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
`FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401
`
` July 29, 2020
`
`
`
`CASE NO.: 4D18-1730
`L.T. No.:
`08-80000 (19),
`2008CV025807 (19)
`
`PHILIP MORRIS USA, INC., R.J.
`REYNOLDS TOBACCO COMPANY, and
`LIGGETT GROUP LLC
`
`v.
`
`JAMES SANTORO, as Successor as
`Personal Representative of the Estate of
`Grace Santoro
`
`Appellant / Petitioner(s)
`
`Appellee / Respondent(s)
`
`BY ORDER OF THE COURT:
`
`ORDERED that appellants’ June 22, 2020 motion for rehearing en banc is denied.
`
`Served:
`
`cc: Austin Carr
`David F. Northrip
`Jeffrey V. Mansell
`Karen Haynes Curtis
`Maria H. Ruiz
`Philip Robbins Green
`William L. Durham
`
`kr
`
`Bard D. Rockenbach
`Geoffrey Jonathan Michael
`Joseph M. Fasi, II
`Kelly Anne Luther
`Maria R. Salcedo
`Rebeca M. Ojeda
`
`Cory Hohnbaum
`Jason E. Keehfus
`Justin Parafinczuk
`Laura Kathleen Whitmore
`Peter M. Henk
`Val Leppert
`
`

`

`J herooymfifJ'dlatdlf llNlftull lftgoing is a
`tr~ a,pJ' Clf iamwaeat filed m my office.
`Lona Weiabhun., CLERK
`DISTRICT COURT OF APPEAL OF
`FLORID~ FOURTH DISTRICT
`Per Jl,;atc- ~
`DepatyOerk
`
`

`

`FOURTH DISTRICT COURT OF APPEAL
`110 SOUTH TAMARIND AVENUE
` WEST PALM BEACH, FLORIDA 33401
`(561) 242-2000
`
`Date: ____________________
`
`Case Name: _______________________________________________________
`Case No: 4D_____________
`Trial Court No.: ______________________________
`Trial Court Judge: __________________________
`
`Dear Mr. Tomasino:
`
`Attached is a certified copy of a Notice to Invoke Discretionary Jurisdiction/Notice of Appeal to the Supreme
`Court of Florida pursuant to Rule 9.120, Florida Rules of Appellate Procedure. Attached also is this Court’s
`opinion or decision relevant to this case.
`
` The filing fee prescribed by Section 25.241(3), Florida Statutes, was received by this court
`and will be mailed.
`
` The filing fee prescribed by Section 25.241(3), Florida Statutes, was not received by this court.
`
`Petitioner/Appellant has been previously determined insolvent by the circuit court or our court.
`
`Petitioner/Appellant has already filed, and this court has granted, petitioner/appellant’s Motion
`to proceed without payment of costs in this case.
`
`Petitioner/Appellant filed Notice via EDCA and the fee has not been received by this court.
`
`No filing fee is required in the underlying case in this court because it was:
`
`A Summary Appeal (Rule 9.141)
`From the Unemployment Appeals Commission
`A Habeas Corpus Proceeding
`A Juvenile Case
`Other – ____________________________________________________
`
`If there are any questions regarding this matter, please do not hesitate to contact this Office.
`
`Sincerely,
`
`LONN WEISSBLUM
`Clerk of the Court
`
`By: _________________________________
`Deputy Clerk
`
`

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