In Sowers v. R.J. Reynolds Tobacco Co., No. 18-11901 (11th Cir. Sept. 15, 2020), where the defendant did not dispute that the plaintiff was erroneously denied a punitive-damage trial, the court holds that the Seventh Amendment Reexamination Clause does not command a retrial of liability.
Sowers is an “Engle progeny” action, a case emerging from a massive Florida state-court class action alleging tort, contract, and strict-liability claims against the major tobacco companies. Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). After liability was established in Engle, the Florida Supreme Court decertified the class to allow individual members to proceed personally for individual relief. Follow-up cases would be bound by the factual determinations in the original case by issue preclusion.
Ms. Sowers, personal representative of the estate of Charles Sowers, filed a follow-up case. “After a seven-day trial, the jury returned a verdict in favor of Mrs. Sowers on the negligence and strict liability claims and found that she had sustained $4,250,000 in compensatory damages.” Because the jury found comparative negligence on the deceased’s part, the award was halved to $2.125 million.
Both sides appealed from the judgment: the defendant challenged exclusion of evidence and alleged misconduct in closing argument (the Eleventh Circuit affirms the district court on these arguments), while the plaintiff challenged the denial of punitive damages. In between the trial and appeal, the Florida Supreme Court held that Engle-progeny plaintiffs could pursue punitive damages on “all claims properly raised in their subsequent individual actions.” Defendant conceded that this change of law applied to Ms. Sowers’ case and that she was entitled to a new trial on punitive damages.
The defendant nevertheless argued that in federal court, which is governed by the Seventh Amendment, the punitive-damage trial was constrained by the Reexamination Clause: “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” It argued that a second jury would inevitably be compelled to consider issues of comparative fault that were inseparable from facts decided in the first trial. According to the defendant, Ms. Sowers would have to forfeit the first verdict to obtain a new trial on punitive damages.
The panel doesn’t mince words. “Actually, what the company wants to do is pressure the elderly widow, whose husband its products killed, out of exercising her right to seek punitive damages from it for that. The amount of pressure that strategy employs is shown by the fact that Mrs. Sowers has stated through her attorneys that if she is forced to retry the liability and compensatory damages issues as the cost of seeking punitive damages, she will forsake her right to seek them.”
It holds that the issues in the first and second trials were, in the end, separable. “There were no factual issues about R.J. Reynolds’” strict liability or negligence left over from the original Engle decision to be decided by the first jury. Likewise, “[t]he first jury’s comparative fault determination in this case did not require it to make any findings that are interwoven with any of the findings that the remand jury will have to make in reaching a punitive damages verdict. A close look at the Florida law on comparative fault and on punitive damages reveals that the two determinations do not overlap.” While comparative fault focuses on the plaintiff’s contribution to causing his own injury, the element of intentional misconduct underlying a punitive damage award focuses on the defendant’s knowledge. “Punitive damages are focused entirely on the defendant and its conduct. Compensatory damages are not.” The panel finally passes on “R.J. Reynolds’ worst argument”: that the original compensatory award was in fact driven by the jury’s impulse to punish defendant, even though the jury was specifically instructed that “[c]ompensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendants.” Thus, R.J. Reynolds speculates, conjectures, and assumes that the first jury in this case ‘might have adjusted [its compensatory damages award] upward knowing that [Mrs. Sowers] would receive no punitive damages.” . . . . Even though the jury was emphatically instructed not to do so.” The panel holds that courts invariably assume that juries follow instructions and honor their oaths to follow the law. “If bad a