Case: 14-14709 Date Filed: 04/17/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 14-14709
__________________________
D.C. Docket No. 3:09-cv-11128-WGY-JBT
PATRICK O. GRIFFIN,
Plaintiff-Appellee,
versus
PHILIP MORRIS USA, INC.,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
__________________________
(April 17, 2018)
Before TJOFLAT and JULIE CARNES, Circuit Judges, and KAPLAN, * District
Judge.
PER CURIAM:
*
Honorable Lewis A. Kaplan, United States District Judge for the Southern District of
New York, sitting by designation.
Case: 14-14709 Date Filed: 04/17/2018 Page: 2 of 4
This case arises from the Engle line of litigation involving illnesses allegedly
caused by addiction to cigarettes. After our recent decision in Graham, the sole
remaining issue concerns whether the District Court erred by refusing to amend the
judgment under Federal Rule of Civil Procedure 59(e) to reflect a contractual
discount to the cost of a lung transplant.1 We hold that the District Court did not
abuse its discretion in refusing to amend the judgment.
I.
The relevant facts are as follows. Patrick Griffin instituted this action
alleging that he developed chronic obstructive pulmonary disease because of his
addiction to cigarettes manufactured by Philip Morris. As a result of the disease,
Griffin underwent a lung transplant at the University of Wisconsin Hospital
(“UWH”). Griffin received a bill of $345,081.27 for the transplant and associated
care on July 28, 2009. The bill, however, stated that the claim was “payable under
the global package rate specified in the contract between [UWH] . . . and VA
HOSPITAL,” which reduced the “[t]otal reimbursement” to $154,457.00.
1
Defendant argues that federal law preempts the strict liability and negligence claims
brought under Florida law. In Graham, we held that “federal tobacco laws do not preempt state
tort claims based on the dangerousness of all the cigarettes manufactured by the tobacco
companies.” Graham v. R.J. Reynolds Tobacco Co.,
857 F.3d 1169, 1186 (11th Cir. 2017) (en
banc), cert. denied,
138 S. Ct. 646 (2018). Our decision in Graham resolves this issue. The
claims are not preempted.
In the alternative, the defendant argues that it is entitled to a new trial because the District
Court failed to instruct the jury that Philip Morris cannot be held liable for the mere
advertisement, sale, or manufacture of cigarettes. Graham forecloses this argument as well.
Id.
at 1182–83.
2
Case: 14-14709 Date Filed: 04/17/2018 Page: 3 of 4
Despite this contractual discount, the parties stipulated at trial that UWH
charged the plaintiff $345,081.27 for the lung transplant, the undiscounted amount.
The District Court accordingly instructed the jury that “[t]he amount of the
plaintiff’s past medical expenses is $584,200.53,” which included the undiscounted
cost of the lung transplant. The jury found for the plaintiff and awarded him
$1,268,402 in compensatory damages, with the fault allocated equally between the
plaintiff and defendant. It issued this award in a general verdict, which did not
differentiate between the various economic and non-economic damages. The
District Court entered judgment against the defendant on July 17, 2014 and
awarded $634,201 in damages. 2
A month later, on August 14, 2014, the defendant filed a motion under Rule
59(e) to reduce the damages in the judgment by $95,312.13 to reflect the
contractual discount the VA Hospital received in paying for the plaintiff’s lung
transplant. The District Court denied the motion on the ground that “amend[ing]
the judgment as Defendant requests would be an exercise in impermissible
speculation” because “[t]he general verdict returned by the jury does not state how
much, if any, the jury awarded Plaintiff for past medical expenses.”
2
The District Court entered an amended judgment against the defendant on November 5,
2014 that awarded the plaintiff $547,851.60 in damages and attorney fees.
3
Case: 14-14709 Date Filed: 04/17/2018 Page: 4 of 4
II.
“The decision to alter or amend judgment is committed to the sound
discretion of the district judge and will not be overturned on appeal absent an
abuse of discretion.” Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc.,
763 F.2d 1237, 1238–39 (11th Cir. 1985).
We see no abuse of discretion in this case. We have held that collateral
benefits must be subtracted from the “portion of a verdict representing the same
item of damages,” not the “total verdict.” Ganley v. United States,
878 F.2d 1351,
1353–54 (11th Cir. 1989). In accordance with this principle, where the defendant
has failed to obtain a special verdict, the Florida courts have refused to setoff
collateral source payments to avoid “speculation.” Johnson v. LaSalle,
774 So. 2d
760, 761 (Fla. Dist. Ct. App. 2000); see also Midtown Enters., Inc. v. Local
Contractors, Inc.,
785 So. 2d 578, 582–83 (Fla. Dist. Ct. App. 2001); Magsipoc v.
Larsen,
639 So. 2d 1038, 1042–43 (Fla. Dist. Ct App. 1994); Odom v. Carney,
625
So. 2d 850, 851 (Fla. Dist. Ct. App. 1993). Therefore, because of the general
verdict in this case,3 the District Court did not abuse its discretion in denying the
Rule 59(e) motion to amend the judgment out of concerns with speculation.
AFFIRMED.
3
Defendants did not object to the use of a general verdict at trial.
4
