Vero Beach, FL—A day after a jury found tobacco defendants liable for possible punitive damages but awarded no compensatory damages to an Engle progeny plaintiff, Judge Cynthia Cox granted the parties’ agreed-upon motion for a mistrial. Gore v. R.J. Reynolds.
“To me there’s just some confusion,” in the case law, Cox said when granting the motion in Robert Gore's wrongful death suit against R.J. Reynolds. “Based on the disagreement, I believe between the (Florida) Supreme Court and the (state’s) 4th (District Court of Appeals)… I’ll declare a mistrial.”
On Tuesday afternoon, the jury apportioned 80% liability to Gloria Gore, the deceased smoker at the suit’s center, and found defendants Philip Morris 15% responsible and R.J. Reynolds 5% responsible for the lung cancer that ultimately killed her. Jurors also found that the tobacco manufacturers were liable for punitive damages, which were scheduled to be determined in a second phase of trial. Notably, however, jurors awarded nothing in compensatory damages.
Subsequent to the verdict, opposing counsel argued whether compensatory damages are a prerequisite to an award of punitive damages in a Florida negligence action. Plaintiff’s counsel contended yesterday that language in Engle v. Liggett Group Inc., the Florida Supreme Court case that spawned this and thousands of similar tobacco cases, allowed for a punitive award without compensatory damages. However, defense counsel argued that the Florida 4th District Court of Appeals interpreted the language in Engle as requiring some form of compensatory award prior to an award of punitives.
By this morning, the parties had agreed on a motion for mistrial in the case. Parties’ attorneys were unavailable for comment prior to publication of this article.
Gore had sought $7.5 million in compensatory damages.
Any disagreement over the relationship between punitive and compensatory damages may stem from the language in Engle itself, which relied on different majorities of the court in determining the case’s multiple issues. Howard A. Engle, et al. v. Liggett Group Inc., et al., 945 So. 2d 1246 (2006). In considering the issue of punitive damages, the Engle court wrote “Because a finding of entitlement to punitive damages is not dependent on a finding that a plaintiff suffered a specific injury, an award of compensatory damages need not precede a determination of entitlement to punitive damages. Therefore, we conclude that the order of these determinations is not critical.” Later, in reviewing punitive damages for excessiveness and Due Process compliance, the state’s supreme court held that “the amount of compensatory damages must be determined in advance of a determination of the amount of punitive damages awardable, if any, so that the relationship between the two may be reviewed for reasonableness.”
University of Florida law professor Lars Noah, who has written on a variety of torts issues, said he had not read the full line of cases upon which the parties in Gore relied, but was unaware of a Florida negligence case in which punitive damages were properly awarded without an award of at least nominal damages. Noah also said punitive awards without compensatory damages can run afoul of Due Process tests, such as those discussed in Engle, that rely on a ratio between compensatory and punitive damages. “To the extent that punitive damages depend on a compensatory award, I don’t know how you can award punitive damages when the compensatory is zero,” Noah said.
Retrial in the Gore case is expected next year.