An appeals court Wednesday ordered cigarette makers Philip Morris USA and R.J. Reynolds Tobacco Company to pay a full $1.5 million in damages in the death of a longtime smoker.
A Broward County jury in 2015 awarded $1 million in compensatory damages and $500,000 in punitive damages to the estate of Salvatore Marchese. But a circuit judge lowered the amount the companies would have been required to pay in compensatory damages to $450,000 because of “comparative fault” — the concept that Marchese was partly responsible for his death.
But a three-judge panel of the 4th District Court of Appeal on Wednesday ruled that the tobacco companies had waived their right to a reduction in the compensatory-damages award. “Appellants' (the companies') repeated suggestions to the jury that there would be no reduction of the compensatory damages award were made in hopes of minimizing the amount of punitive damages awarded,” said Wednesday's eight-page decision, written by Judge Mark Klingensmith and joined by judges Cory Ciklin and Robert Belanger.
“At no point did appellants' counsel inform the jury of their intent to seek a reduction of the compensatory damages award based on comparative fault, nor did they remain silent on the issue. Instead, appellants affirmatively represented that appellee (the Marchese estate) would be fully compensated as a `shield' against the potential imposition of a large punitive damages award, all the while intending to use the comparative fault statute as a `sword' to reduce the amount awarded.”
Marchese started smoking as a teenager and died in 2004 of lung cancer, according to information posted on the website of the MotleyRice law firm, which represented the estate.
