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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14074
________________________
D.C. Docket No. 3:09-cv-14157-WGY-HTS
BERNARD COTE, as Personal Representative of the
Estate of Judith Berger,
Plaintiff-Appellee,
versus
PHILIP MORRIS USA, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 19, 2021)
Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.
MARTIN, Circuit Judge:
Philip Morris USA, Inc. (“Philip Morris”), a cigarette company, appeals the
District Court’s order denying its motion for a new trial or to reduce the punitive
damages award in favor of Judith Berger. Mrs. Berger sued Philip Morris based on
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her smoking-related injuries. A jury awarded her $6.25 million in compensatory
damages and approximately $20.7 million in punitive damages. Philip Morris
argues that the punitive damages award is excessive in violation of constitutional
due process. After careful review, we conclude that the punitive damages award is
not unconstitutionally excessive and does not violate due process. We therefore
affirm the District Court’s ruling.
An enormous amount of time and resources have been spent by the parties
and the courts on this single case. Due to several post-trial motions, it’s been over
six years since Mrs. Berger’s case went to trial, and her case has already come to
us once on appeal. See Cote v. R.J. Reynolds Tobacco Co.,
909 F.3d 1094 (11th
Cir. 2018) (“Cote I”). Sadly Mrs. Berger died before her legal case was resolved,
and Bernard Cote, as the personal representative of her estate, carries on here to
seek belated justice on her behalf. 1 See
id. at 1099 n.1. With our resolution of this
latest post-trial motion, we hope this winding litigation will come to a close.2
1
As this Court did in Cote I, and for the sake of clarity, we refer to Mrs. Berger as the
plaintiff-appellee. See Cote I, 909 F.3d at 1099 n.1.
2
In denying Philip Morris’s motion, the District Court said it would have ordinarily
issued an order to Philip Morris to show cause why it should not pay attorney’s fees and costs
that it caused Mrs. Berger to incur by engaging in “vexatious litigation” that “served no other
purpose than to delay payment of the judgment.” However, the District Court acknowledged that
such an order “would no doubt bring about further skirmishing” and “serve [Philip Morris’s]
strategy of delay.” The District Court therefore declined to issue a show cause order but urged
this Court to issue remedial sanctions as it deems proper if Philip Morris were unsuccessful in its
appeal. We decline to sua sponte issue remedial sanctions at this time, but we agree with the
District Court’s admonition that further delay is not acceptable.
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I. BACKGROUND
In 1994, Florida smokers and their survivors brought a class action lawsuit
in Florida state court against the major cigarette companies, including Philip
Morris. See Graham v. R.J. Reynolds Tobacco Co.,
857 F.3d 1169, 1174–81 (11th
Cir. 2017) (en banc) (detailing the long procedural history of the litigation). The
plaintiffs brought a variety of claims based on their smoking-related injuries.
Id. at
1174. In Engle v. Liggett Group, Inc.,
945 So. 2d 1246 (Fla. 2006), the Florida
Supreme Court decertified the class action to allow individual actions to proceed
on the issue of damages. See
id. at 1267–69. In the wake of Engle, thousands of
individual cases were filed. See Graham, 857 F.3d at 1178. This case is one of the
last Engle-progeny cases remaining in federal court.
Mrs. Berger was born in 1944 and raised in Brooklyn, New York. Cote I,
909 F.3d at 1101. She tried her first cigarette at the age of thirteen because “all of
the kids smoked,” including her twin sister. Id. By the age of sixteen, she smoked
a pack of cigarettes a day, and by age twenty, a pack and a half a day. Id. at 1101–
02. In the 1980s, she “realized that she had become a slave to cigarettes.” Id. at
1102. Mrs. Berger tried to quit smoking for years, but it was not until 1998, when
she was diagnosed with chronic obstructive pulmonary disease (“COPD”), that she
finally stopped smoking. Id. Mrs. Berger brought suit against Philip Morris as an
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Engle class member under theories of strict liability, negligence, fraudulent
concealment, and conspiracy to fraudulently conceal. Id. at 1100.
Mrs. Berger’s case proceeded to trial. Id. At trial, testimony and evidence
were presented about Mrs. Berger’s condition as well as Philip Morris’s
misconduct. See id. at 1100–02. With regard to Mrs. Berger, the evidence
established that her addiction to cigarettes caused her COPD. Id. at 1101. One of
Mrs. Berger’s physicians testified that her COPD shortened her life expectancy.
As to Philip Morris, the jury heard “extensive evidence” that beginning in the early
1950s and for decades thereafter, Philip Morris “engaged in a massive and
effective disinformation campaign, aimed at instilling false doubt about scientific
research linking cigarette smoking and deadly disease.” Id. The evidence at trial
also showed that Philip Morris deliberately targeted young people as part of its
marketing strategy. The jury found in favor of Mrs. Berger on all her claims and
awarded her $6.25 million in compensatory damages. 3 Id. at 1102. The jury also
found that Mrs. Berger was entitled to punitive damages for her intentional tort
claims. Id. at 1103. The trial thus proceeded to a second phase, in which the jury
awarded Mrs. Berger $20,760,000.14 in punitive damages. Id.
3
The jury found that Mrs. Berger was 40 percent comparatively at fault. However, that
finding did not affect her compensatory recovery because the jury also found Philip Morris liable
on Mrs. Berger’s intentional tort claims. Under Florida law, there is no reduction to
compensatory damages that result from an intentional tort. See
Fla. Stat. § 768.81(4).
4
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After the jury returned the verdict in favor of Mrs. Berger, Philip Morris
moved for a new trial or a reduction in damages based on, among other things, the
excessiveness of the punitive damages award. Philip Morris also moved for
judgment as a matter of law on Mrs. Berger’s two intentional tort claims—
fraudulent concealment and conspiracy to fraudulently conceal. The District Court
granted judgment as a matter of law in favor of Philip Morris on the two
intentional tort claims and vacated the punitive damages award that was based on
those claims.
On appeal, our Court reversed the District Court’s order granting Philip
Morris’s motion for judgment as a matter of law on the two intentional tort claims.
Cote I, 909 F.3d at 1106–09. We remanded “the case to the district court for the
entry of judgment in Plaintiff’s favor on claims for fraudulent concealment and
conspiracy to fraudulently conceal and for reinstatement of the jury’s
corresponding punitive damages award.” Id. at 1110. On remand, the District
Court entered an amended judgment in the amount of $6.25 million in
compensatory damages and approximately $20.7 million in punitive damages. In
response, Philip Morris filed three motions, one of which argued that the punitive
damages award should either be vacated or reduced because it is unconstitutionally
excessive in violation of due process. The District Court considered the three
guideposts established by the Supreme Court for analyzing whether a punitive
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damages award is unconstitutionally excessive. This resulted in its finding that the
punitive damages award to Mrs. Berger is not unconstitutionally excessive. The
District Court therefore denied Philip Morris’s motion, and Philip Morris brought
this appeal.
II. DISCUSSION
This case presents the question of whether the $20.7 million in punitive
damages awarded to Mrs. Berger is unconstitutionally excessive. Before we get to
that, however, the parties raise a preliminary question about whether our decision
in Cote I bars Philip Morris from arguing that the punitive damages award is
unconstitutionally excessive. We begin by disposing of that preliminary matter
and then turn to the substance of this appeal.
A. Philip Morris’s argument that the punitive damages award is
unconstitutionally excessive is not barred by our decision in Cote I.
In Cote I, this Court reversed the District Court’s order granting Philip
Morris’s motion for judgment as a matter of law on Mrs. Berger’s two intentional
tort claims. See Cote I, 909 F.3d at 1106–09. We remanded the case to the
District Court for entry of judgment in favor of Mrs. Berger on those claims. See
id. at 1110. And because the District Court vacated the punitive damages award
when it granted judgment as a matter of law on those claims, we also remanded the
case to the District Court “for reinstatement of the jury’s corresponding punitive
damages award.” Id.
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In the “Introduction” section of her brief on appeal, Mrs. Berger asserts,
without any supporting authority, that this Court’s direction to the District Court in
Cote I to reinstate the punitive damages award is “dispositive law of the case” that
required reinstatement of the award and “no more.” In other words, Mrs. Berger
appears to argue that Cote I bars any further proceedings on punitive damages. But
Mrs. Berger does not press her assertion anywhere in the body of her brief. Philip
Morris argues in turn that Mrs. Berger has abandoned this issue by not arguing it
outside of the Introduction of her brief.
An issue is abandoned when passing references to it are made only in, for
example, a brief’s statement of the case or summary of the argument. See Sapuppo
v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014); see also Cole v.
U.S. Att’y Gen.,
712 F.3d 517, 530 (11th Cir. 2013) (a party abandons an issue
when he “mentions [it] only in his Statement of the Case but does not elaborate
further in the Argument section”), abrogated on other grounds by Nasrallah v.
Barr, 590 U.S. ___,
140 S. Ct. 1683 (2020). Here, because she raises it only in the
Introduction of her brief, Mrs. Berger abandoned her assertion that the decision in
Cote I bars Philip Morris from arguing that the punitive damages award is
unconstitutionally excessive.
Nonetheless, even if this assertion was not abandoned, it fails on the merits.
The “mandate rule” is a specific application of the law of the case doctrine.
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Transamerica Leasing, Inc. v. Inst. of London Underwriters,
430 F.3d 1326, 1331
(11th Cir. 2005). The mandate rule prohibits a district court from altering,
amending, or examining our mandate or giving any further relief or review. See
Piambino v. Bailey,
757 F.2d 1112, 1119 (11th Cir. 1985). However, it does “not
extend to issues the appellate court did not address,” and thus the district court is
“free to address, as a matter of first impression, those issues not disposed of on
appeal.”
Id. at 1119–20. Nothing in our decision in Cote I addressed whether the
punitive damages award is unconstitutionally excessive. We simply remanded the
case to the District Court “for reinstatement of the jury’s corresponding punitive
damages award.” See Cote I, 909 F.3d at 1110. Indeed, the panel in Cote I
couldn’t have addressed that issue because the District Court took the punitive
damages award out of the case before it came to us on appeal. Therefore, the
District Court was free to address the constitutionality of the punitive damages
award on remand, and our decision in Cote I does not bar Philip Morris from
raising the issue here.
B. The punitive damages award in this case is not unconstitutionally
excessive.
With that issue out of the way, we turn to the heart of this appeal. Philip
Morris argues that the $20.7 million in punitive damages awarded to Mrs. Berger is
excessive and violates due process. We review de novo the constitutionality of a
punitive damages award and defer to the district court’s findings of fact unless
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clearly erroneous. McGinnis v. Am. Home Mortg. Servicing, Inc.,
901 F.3d 1282,
1288 (11th Cir. 2018). It is well-established that punitive damages can be imposed
in order to further the government’s legitimate interest in punishing and deterring
unlawful conduct. BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 568,
116 S. Ct.
1589, 1595 (1996). However, because a punitive damages award is an exercise of
government power, it must comport with constitutional due process. Action
Marine, Inc. v. Continental Carbon Inc.,
481 F.3d 1302, 1318 (11th Cir. 2007). A
“grossly excessive” punitive damages award is one that “furthers no legitimate
purpose and constitutes an arbitrary deprivation of property,” thereby violating due
process. State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 417,
123 S.
Ct. 1513, 1520 (2003). 4
When deciding whether a punitive damages award is unconstitutionally
excessive, we consider three “guideposts.” See Action Marine,
481 F.3d at 1318.
First, we consider the degree of reprehensibility of the defendant’s misconduct.
Id.
Second, we look at the ratio of the punitive damages award to the actual or
potential harm suffered by the plaintiff.
Id. Third, we look at the difference
4
Our due process analysis is the same regardless of whether the Fifth Amendment or the
Fourteenth Amendment applies. See Williams v. First Advantage LNS Screening Sols. Inc.,
947
F.3d 735, 749–50 & n.12 (11th Cir. 2020) (Fifth Amendment); Action Marine,
481 F.3d at 1318
(Fourteenth Amendment); see also Morgan v. Woessner,
997 F.2d 1244, 1255 (9th Cir. 1993)
(“It should make no difference whether the imposition of [punitive] damages was by a federal or
state court or whether on federal or state claims. For this purpose there is only one Due Process
Clause.”).
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between the punitive damages award and the civil penalties authorized or imposed
in comparable cases.
Id. We will take up these three guideposts in order. Because
all three guideposts indicate that the punitive damages award in favor of Mrs.
Berger is not unconstitutionally excessive, we hold that the award does not violate
due process.5
1. Reprehensibility
The first guidepost considers the reprehensibility of the defendant’s conduct,
which is the “most important indicium of the reasonableness of a punitive damages
award.” State Farm,
538 U.S. at 419,
123 S. Ct. at 1521 (quotation marks
omitted); see also McGinnis, 901 F.3d at 1288 (“The reprehensibility of the
defendant’s conduct is the ‘dominant consideration’ in assessing whether a jury’s
punitive damages award is excessive.”). There are five specific factors we
5
Perhaps recognizing it wouldn’t fare too well on the guideposts, Philip Morris advances
two arguments unrelated to the guideposts for why the punitive damages award to Mrs. Berger is
unconstitutionally excessive. First, Philip Morris says the punitive damages are not necessary
for deterrence or punishment. Second, Philip Morris says that any punitive damages award must
be low enough such that the aggregate amount of punitive damages in all Engle litigation is not
unconstitutionally excessive. During the pendency of this appeal, we decided Kerrivan v. R.J.
Reynolds Tobacco Co.,
953 F.3d 1196 (11th Cir. 2020), another Engle-progeny case involving
the constitutionality of a punitive damages award against Philip Morris. See
id. at 1200–01. In
that case, Philip Morris made these same two arguments. See
id. at 1208 n.8. This Court
rejected both arguments as “irrelevant to the constitutional test for excessiveness” and said
neither argument could “justify reversal of the punitive damages award on constitutional
grounds.”
Id. Philip Morris concedes that Kerrivan forecloses its arguments and only presses
them in our Court to “preserve its position for potential further review.” In light of Philip
Morris’s acknowledgment, we do not consider these two arguments. But if we were to consider
them, they are foreclosed by Kerrivan, which characterized them as “irrelevant to the
constitutional test for excessiveness.”
Id.
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consider under the reprehensibility guidepost: (1) whether “the harm caused was
physical as opposed to economic”; (2) whether “the tortious conduct evinced an
indifference to or a reckless disregard of the health or safety of others”;
(3) whether “the target of the conduct had financial vulnerability”; (4) whether “the
conduct involved repeated actions or was an isolated incident”; and (5) whether
“the harm was the result of intentional malice, trickery, or deceit, or mere
accident.” Myers v. Cent. Fla. Inv., Inc.,
592 F.3d 1201, 1219 (11th Cir. 2010).
There is no requirement that a certain number of the factors be present, but
“reprehensibility grows more likely as more factors are present.”
Id.
Philip Morris does not appear to contest that its conduct was reprehensible.
Nonetheless, we briefly address the various factors that make up the
reprehensibility guidepost. 6 The first factor indicates Philip Morris engaged in
reprehensible conduct, as Mrs. Berger suffered from severe COPD caused by her
addiction to cigarettes, which is physical harm. Cote I, 909 F.3d at 1101. The
second factor also demonstrates reprehensible conduct because Philip Morris was
indifferent to the health and safety of others. Specifically, Philip Morris knew its
6
The reprehensibility determination begins with “the identification of the [government’s]
interest and an assessment of the strength of that interest” in imposing punitive damages. Action
Marine,
481 F.3d at 1319 (quotation marks omitted). The parties do not expressly address this
issue, so we assume they agree with the District Court’s finding that the government has a
“significant” interest in punishing and deterring Philip Morris’s unlawful conduct that occurred
in this case.
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products were addictive and dangerous and yet worked to suppress this information
by engaging in a “massive and effective disinformation campaign, aimed at
instilling false doubt about scientific research linking cigarette smoking and deadly
disease.”
Id. at 1099–1101. Beyond that, Philip Morris deliberately targeted
young people as part of its marketing strategy. Mrs. Berger does not argue that the
third factor, concerning the financial vulnerability of the victim, shows
reprehensible conduct, so we do not address it. 7 The fourth factor indicates
reprehensible conduct because Philip Morris’s conduct involved repeated actions
and not an isolated incident. The evidence at trial showed that Philip Morris’s
disinformation campaign began in the early 1950s and continued for decades. Id.
at 1101. The final factor, concerning whether the harm was the result of
intentional malice, trickery, or deceit, also demonstrates reprehensibility. The
whole point of Philip Morris’s disinformation campaign was to hide the scientific
research it knew linked cigarette smoking to deadly disease. Id. at 1100–01.
Because all but one of the factors indicate that Philip Morris’s conduct was
reprehensible (and because Philip Morris does not contest the reprehensibility
guidepost), this guidepost indicates that the punitive damages award is not
unconstitutionally excessive.
7
The District Court found that the third factor did not weigh in favor of either side but
noted that “Philip Morris had and still has vastly more financial resources than Mrs. Berger did.”
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2. Ratio
The next guidepost considers “the ratio of punitive damages to actual harm
inflicted on the plaintiff.” Myers,
592 F.3d at 1221. In practice, this means we
examine the ratio of punitive damages to compensatory damages.
Id. There is no
certain ratio at which a constitutionally permissible award is transformed into an
unconstitutionally excessive one. See Action Marine,
481 F.3d at 1321 (the
appropriate ratio has not been “reduced to a ‘simple mathematical formula’”); see
also State Farm,
538 U.S. at 425,
123 S. Ct. at 1524 (declining to “impose a bright-
line ratio which a punitive damages award cannot exceed”). Rather, the “precise
award in any case . . . must be based upon the facts and circumstances of the
defendant’s conduct and the harm to the plaintiff.” State Farm,
538 U.S. at 425,
123 S. Ct. at 1524. However, we are not left fumbling entirely in the dark as to
what ratio is constitutionally appropriate. The Supreme Court has observed that
hundreds of years of legislative history have provided for “sanctions of double,
treble, or quadruple damages to deter and punish.”
Id. Although “not binding,”
this shows us that single-digit multipliers are “more likely to comport with due
process,” but that a punitive damages award of “more than four times the amount
of compensatory damages might be close to the line of constitutional impropriety.”
Id. Here, Mrs. Berger was awarded just over $20.7 million in punitive damages
together with $6.25 million in compensatory damages. That is approximately a
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3.3-to-1 ratio, which is a single-digit multiplier, and a punitive damages award less
than four times the amount of compensatory damages. Therefore, the ratio
guidepost indicates that the punitive damages award to Mrs. Berger is not
unconstitutionally excessive.
Philip Morris makes two arguments to the contrary. First, Philip Morris
seizes on language in State Farm, which says that when “compensatory damages
are substantial, then a lesser ratio, perhaps only equal to compensatory damages,
can reach the outermost limit of the due process guarantee.” State Farm,
538 U.S.
at 425,
123 S. Ct. at 1524. In its view, the $6.25 million compensatory damages
award is substantial, such that punitive damages should be capped at that amount.
We are not persuaded. As an initial matter, this Court has characterized the
language Philip Morris relies on as dicta. See McGinnis, 901 F.3d at 1290. But
even if it weren’t dicta, the very next sentence of State Farm says the precise award
in each case “must be based upon the facts and circumstances of the defendant’s
conduct and the harm to the plaintiff.” State Farm,
538 U.S. at 425,
123 S. Ct. at
1524. In light of the reprehensible facts and circumstances of this case, see supra
Part II.B.1, we believe the ratio here is proper. Beyond that, requiring a 1-to-1
ratio whenever a defendant asserts that the compensatory damages are
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“substantial” would impose a “bright-line ratio” that the Supreme Court has
expressly declined to adopt. See State Farm,
538 U.S. at 425,
123 S. Ct. at 1524. 8
Second, Philip Morris notes that two other Engle-progeny cases had punitive
damages with ratios of close to 3-to-1 that were found to be unconstitutionally
excessive. It says this means that the ratio here is also unconstitutionally
excessive. This argument fails to persuade us as well. We are aware of no reason
why two decisions in other Engle-progeny cases (there are thousands) as to the
excessiveness of punitive damages in those cases should govern here. We are
mindful that the award in each case must be based on the “facts and circumstances
of the defendant’s conduct and the harm to the plaintiff.” State Farm,
538 U.S. at
425,
123 S. Ct. at 1524. Among other differences, those two cases only included
R.J. Reynolds Tobacco Co. as a defendant, not Philip Morris, and of course
involved different plaintiffs. See R.J. Reynolds Tobacco Co. v. Schoeff,
178 So.
3d 487, 488 (Fla. 4th DCA 2015), quashed,
232 So. 3d 294 (Fla. 2017); R.J.
Reynolds Tobacco Co. v. Townsend,
90 So. 3d 307, 309 (Fla. 1st DCA 2012).
8
Philip Morris also cites Exxon Shipping Co. v. Baker,
554 U.S. 471, 514–15,
128 S. Ct.
2605, 2634 (2008), for its view that the punitive damages award must be capped at a 1-to-1 ratio.
However, the Supreme Court in Exxon Shipping was “quite explicit that it was dealing with
maritime law, and not due process of law.” Myers,
592 F.3d at 1222; see Exxon Shipping, 554
U.S. at 501–02,
128 S. Ct. at 2626–27.
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Thus, the defendant’s conduct and the harm to the plaintiffs in those cases do not
dictate any outcome here.9
3. Civil Penalties
The final guidepost considers the “difference between the punitive damages
awarded by the jury and the civil penalties authorized or imposed in comparable
cases.” Action Marine,
481 F.3d at 1318 (quotation marks omitted). This
guidepost is “accorded less weight . . . than the first two guideposts.”
Id. at 1322
(quotation marks omitted). The Florida Supreme Court has recognized that in
“comparable cases, the civil penalty is often three times the compensatory award.”
Schoeff v. R.J. Reynolds Tobacco Co.,
232 So. 3d 294, 308 (Fla. 2017). Because
the ratio of 3.3-to-1 here is remarkably close to that treble multiplier in comparable
cases under Florida law, the civil penalties guidepost also supports the punitive
damages award imposed in this case.
III. CONCLUSION
All three guideposts used for determining whether a punitive damages
award is unconstitutionally excessive indicate that the award in this case is not
9
Philip Morris notes that in Kerrivan this Court recently affirmed an award that had at
most a 2-to-1 ratio. See Kerrivan, 953 F.3d at 1210. And because this case involves a 3.3-to-1
ratio, Philip Morris says the punitive damages award here “need[s] to be reduced” to a 2-to-1
ratio. Again, Philip Morris fails to explain why our affirmance of a ratio in another Engle-
progeny case sets the ceiling for the punitive damages award in this case.
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excessive. The punitive damages award made to Mrs. Berger does not violate due
process.
AFFIRMED.
17
