Jury Awards Former Smoker With COPD $27 Million Against Philip Morris USA, Affirmed After Two Appeals

Judith Berger was born in 1944 and grew up in Brooklyn, New York. She tried her first cigarette at thirteen, was buying her own pack a day by sixteen, and by twenty was smoking a pack and a half daily. She tried to quit several times over the years, including with cessation aids, without success. In 1998 she was diagnosed with chronic obstructive pulmonary disease, and she finally stopped smoking. Her identical twin sister had been diagnosed with emphysema three years earlier.

Mrs. Berger sued Philip Morris USA, Inc. as a member of the Engle class, the group of Florida smokers whose 1994 class action against the major cigarette makers was later decertified. The Florida Supreme Court let class members reuse the first-phase jury findings, including that cigarettes were defective and that the companies concealed what they knew about health effects and addiction, in individual cases. Her case began in Florida state court, was removed to the Middle District of Florida in Jacksonville, and was tried there as No. 3:09-cv-14157.

The nine-day trial was held in September 2014. By then Mrs. Berger was in the end stage of lung disease and relied on supplemental oxygen and a wheelchair. She testified about her smoking history, and jurors heard evidence of a decades-long tobacco industry campaign to create false doubt about the science linking smoking and disease. Her physicians testified that the COPD had shortened her life expectancy. Charles Farah Jr. of Farah & Farah, P.A., appears in the counsel block for Mrs. Berger with lawyers from the Wilner Firm, Lieff Cabraser and Motley Rice.

The jury found for her on every claim: strict liability, negligence, fraudulent concealment and conspiracy to fraudulently conceal. It awarded $6,250,000 in compensatory damages. It found her 40 percent at fault, but under Florida law that finding does not reduce compensatory damages when an intentional tort is proved. In a second phase, the jury awarded $20,760,000.14 in punitive damages, for a combined judgment of about $27,010,000.

The path afterward was long. In April 2015 the trial court granted Philip Morris judgment as a matter of law on the two fraud-based claims, ruling that Mrs. Berger's own testimony undercut the reliance element, and vacated the punitive award. Both sides appealed. Mrs. Berger died on March 30, 2017, while the appeal was pending, and Bernard Cote, the personal representative of her estate, was substituted as the party.

On November 26, 2018, the Eleventh Circuit affirmed the denial of a new trial, reversed the judgment as a matter of law on the fraud claims, and ordered the punitive award reinstated. On remand, Philip Morris argued the punitive damages were unconstitutionally excessive. On January 19, 2021, the Eleventh Circuit rejected that argument, noting a ratio of roughly 3.3 to 1 and finding all three due process guideposts satisfied. The court called the case one of the last Engle-progeny cases in federal court and said further delay was not acceptable.