       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 06, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                         Nos. 3D14-1339 & 3D14-823
                         Lower Tribunal No. 10-62733
                              ________________


                          Philip Morris USA, Inc.,
                           Appellant/Cross-Appellee,

                                        vs.

                             Antonio Cuculino,
                           Appellee/Cross-Appellant.



      Appeals from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

      Boies, Schiller & Flexner LLP, and Stephen N. Zack and Andrew S.
Brenner; Shook, Hardy & Bacon LLP, and J. Daniel Gardner; Arnold & Porter
LLP, and Geoffrey J. Michael (Washington, DC), for appellant/cross-appellee.

      The Ferraro Law Firm, P.A., and James L. Ferraro and David A. Jagolinzer,
for appellee/cross-appellant.


Before WELLS, ROTHENBERG, and EMAS, JJ.

      ROTHENBERG, J.
         Philip Morris USA, Inc. (“Philip Morris”) appeals a final judgment entered

after a jury verdict in favor of the plaintiff below, Antonio Cuculino (“Mr.

Cuculino”), and from the denial of several post-trial motions. Mr. Cuculino cross-

appeals the trial court’s order granting Philip Morris’s motion for partial summary

judgment, thereby precluding Mr. Cuculino from seeking punitive damages as to

his non-intentional tort claims of negligence and strict liability, and the order

denying his motion for attorney’s fees filed pursuant to section 768.79, Florida

Statutes, and Florida Rule of Civil Procedure 1.442. Finding no reversible error,

we affirm.

         Mr. Cuculino filed an Engle-progeny1 action against Philip Morris and R.J.

Reynolds Tobacco Company (“R.J. Reynolds”), alleging that Mr. Cuculino’s

coronary heart disease resulted from smoking cigarettes manufactured by Philip

Morris and R.J. Reynolds. The complaint asserted causes of action for fraudulent

concealment, conspiracy to fraudulently conceal, negligence, and strict liability.

Prior to the commencement of trial, the trial court granted Philip Morris’s and R.J.

Reynolds’s motion for partial summary judgment, thereby precluding Mr.

Cuculino from seeking punitive damages on his non-intentional tort claims of

negligence and strict liability.


1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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      Following a two-week trial, the jury returned a verdict fully exonerating R.J.

Reynolds, but finding against Philip Morris on Mr. Cuculino’s negligence and

strict liability claims. The jury awarded Mr. Cuculino $12.5 million in damages,

but attributed 40% of the fault to Philip Morris and 60% of the fault to Mr.

Cuculino. The jury, however, returned a verdict in favor of Philip Morris as to Mr.

Cuculino’s claims for fraudulent concealment and conspiracy to fraudulently

conceal. Because the trial court had previously ruled that Mr. Cuculino could not

seek punitive damages on his negligence and strict liability claims, and because the

jury found against Mr. Cuculino on his claims for fraudulent concealment and

conspiracy to fraudulently conceal, the jury did not consider punitive damages.

      Following the jury’s verdict, Philip Morris filed several post-trial motions,

including a motion for new trial, asserting that Mr. Cuculino’s counsel made

improper and prejudicial comments during closing arguments. The trial court

denied Philip Morris’s post-trial motions and thereafter entered final judgment in

favor of Mr. Cuculino and against Philip Morris in the amount of $5 million.

These appeals followed.

      Philip Morris contends the trial court abused its discretion by denying its

motion for new trial where Mr. Cuculino’s counsel made improper and prejudicial

comments during closing argument. Although we agree that the comments were

improper, we nonetheless find no reversible error as the comments were not so

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highly prejudicial and inflammatory that Philip Morris was denied its right to a fair

trial.

         During oral argument, Mr. Cuculino’s appellate counsel properly and

commendably acknowledged that the complained-of comments were improper.

During closing argument, Mr. Cuculino’s counsel explained to the jury that people

get paid for the time they work, including actors, who make “astronomical sums,”

professional athletes, who make “tremendous sums,” and expert witnesses, who

make $750 per hour. Defense counsel objected, and the trial court sustained the

objection. Thereafter, Mr. Cuculino’s counsel stated that Philip Morris and R.J.

Reynolds gave Mr. Cuculino the “job” of “suffer[ing] from progressive heart

disease,” and he deserves to get paid for this “job.” Mr. Cuculino’s counsel then

stated: “You know, what is it that’s going to be a just and appropriate figure?

Who in their right mind would want to trade places with Mr. Cuculino and take

this job.” Defense counsel objected, and the trial court sustained the objection.

Immediately thereafter, Mr. Cuculino’s counsel continued this line of argument by

stating: “Would someone do it for a million dollars an hour? Probably not.

Would someone do it for anything? Probably not.” Defense counsel objected and

moved for a mistrial. The trial court sustained defense counsel’s objection and

instructed the jury as follows: “Only the jury gets to choose or determine what is

fair and adequate compensation. Does everybody understand that?” The jury

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answered in the affirmative. The trial court, however, did not instruct the jury to

disregard these comments, and neither Philip Morris nor R.J. Reynolds requested

such an instruction.

      Whether through overzealousness or otherwise, Mr. Cuculino’s counsel

made comments during closing argument that we do not condone, and trial counsel

would be well-advised not to utilize such arguments in future closing arguments.

Nonetheless, despite Mr. Cuculino’s appellate counsel’s acknowledgement at oral

argument that the comments were improper, he vigorously argued that the trial

court did not abuse its discretion by denying Philip Morris’s post-trial motion for

new trial because the comments were not so highly prejudicial and inflammatory

that Philip Morris was denied its right to a fair trial.   See Engle v. Liggett Grp.,

Inc., 945 So. 2d 1246, 1271 (Fla. 2006) (“A trial court’s order granting or denying

a motion for new trial based on either objected-to or unobjected-to improper

argument is reviewed for an abuse of discretion.”). We agree.

      “If the issue of an opponent’s improper argument has been properly

preserved by objection and motion for mistrial, the trial court should grant a new

trial if the argument was ‘so highly prejudicial and inflammatory that it denied the

opposing party its right to a fair trial.’” Id. (quoting Tanner v. Beck, 907 So. 2d

1190, 1196 (Fla. 3d DCA 2005)). In arguing that the comments were “so highly

prejudicial and inflammatory” that it was denied a fair trial, Philip Morris asserts

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that the jury’s $12.5 million verdict is “grossly excessive” and has “no logical

nexus to the evidence presented.” In support, Philip Morris emphasizes that the

jury’s $12.5 million verdict is $2.5 million more than the maximum requested by

Mr. Cuculino’s counsel during closing argument.          Philip Morris’s assertion,

however, is not entirely accurate. Despite asking the jury to award $10 million,

Mr. Cuculino’s counsel clarified in his closing argument that the $10 million figure

did not include future damages and that the jury could award more or less than the

$10 million figure:

      You might go lower, you might want to go higher. But what I’m
      saying is, confine yourselves to the period of time that Mr. Cuculino
      was ill with heart disease from 1994 up until the time in 2009 that he
      quit. It’s up to you. You might decide, no, he’s entitled to future
      damages.

Nonetheless, even if Mr. Cuculino’s counsel would have asked the jury to award

no more than $10 million, “a jury may properly award damages equal to or in

excess of those requested by counsel in closing argument.” Rudy’s Glass Constr.

Co. v. Robins, 427 So. 2d 1051, 1053 (Fla. 3d DCA 1983).             Further, “[t]he

magnitude of a damage award, without more, is no indication that the jury was

motivated by improper consideration in arriving at the award.” Id.

      Contrary to Philip Morris’s assertion, the verdict reflects that the jury was

not inflamed or highly prejudiced by the improper comments because the jury did

not completely find in favor of Mr. Cuculino. First, the jury entered a verdict fully

                                         6
exonerating defendant R.J. Reynolds. Second, the jury found in favor of Philip

Morris on Mr. Cuculino’s intentional tort claims, thereby precluding the jury from

reaching the issue of punitive damages, which is often substantially more than

compensatory damages in Engle-progeny cases. Finally, the jury found that Mr.

Cuculino was 60% at fault, thereby substantially reducing the $12.5 million verdict

to an award of only $5 million.

      Furthermore, based on the record before this Court, we cannot say that there

is no nexus between the jury’s award and the evidence presented. Specifically, the

record demonstrates that Mr. Cuculino (1) suffered a heart attack in 1994 at the age

of forty-nine; (2) underwent an angioplasty in 1995; (3) suffered a serious incident

in 1999 that required him to be airlifted from Key West to Mount Sinai Medical

Center in Miami where he underwent a quadruple bypass surgery; (4) became very

depressed after the quadruple bypass and, as a result, was placed on anti-depressant

medication; (5) underwent a procedure in 2013 where three stents were placed into

two different arteries; (6) suffers from atherosclerosis; (7) has had approximately

twenty catheterization procedures; (8) requires ongoing aggressive intervention

and medical therapy, including taking twelve pills per day for his heart; (9) suffers

from shortness of breath and tightness in the chest after walking half a block; (10)

has restricted his activities due to his fear that he will suffer another heart attack

despite his physician’s advice to return to a normal level of activity and to exercise

                                          7
regularly; and (11) sold his boat because he fears suffering a heart attack at sea. In

addition, Mr. Cuculino’s expert witness testified that Mr. Cuculino is at risk for a

subsequent coronary event which could cause death. In summary, although we

disapprove of these few comments made by Mr. Cuculino’s counsel during his

105-minute closing argument, the jury’s verdict reflects that the comments were

not so highly prejudicial and inflammatory that Philip Morris was denied its right

to a fair trial.

       Lastly, on cross-appeal, Mr. Cuculino contends the trial court erred by

precluding him from seeking punitive damages for his negligence and strict

liability claims and by denying his motion for attorney’s fees based on his offer of

judgment and the jury’s verdict. Based on this Court’s recent decision in R.J.

Reynolds Tobacco Co. v. Williams, 39 Fla. L. Weekly D1863 (Fla. 3d DCA Sept.

3, 2014), which adopted the First District Court of Appeal’s decision in Soffer v.

R.J. Reynolds Tobacco Co., 106 So. 3d 456 (Fla. 1st DCA 2012), review granted,

139 So. 3d 887 (Fla. 2014), the trial court correctly ruled on Philip Morris’s motion

for partial summary judgment precluding Mr. Cuculino from seeking punitive

damages on his negligence and strict liability claims. And, as to the attorney’s fees

issue, Mr. Cuculino’s counsel properly and commendably conceded at oral

argument that Mr. Cuculino is not entitled to his attorney’s fees because his

proposal for settlement did not strictly comply with the requirements set forth in

                                          8
section 768.79 and rule 1.442 based on binding case law interpreting the offer of

judgment statute.

      The remaining issues raised by Philip Morris do not merit discussion.

Accordingly, we affirm the final judgment entered in favor of Mr. Cuculino and

against Philip Morris and the orders denying Philip Morris’s post-trial motions; the

order granting Philip Morris’s motion for partial summary judgment precluding

Mr. Cuculino from seeking punitive damages on his non-intentional tort claims;

and the order denying Mr. Cuculino’s motion for attorney’s fees.

      Affirmed.




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